Clarifying Part 36

In my last costs update (2 April 2013 Solicitors Journal 157/13) I advised that from 1 April 2013 Part 36 offers would apply to detailed assessment proceedings but the transitional provisions said nothing about what would happen where a successful Part 47.19 (as it was before 1 April 2013) offer was made before 1 April 2013 but costs come to be assessed after 1 April 2013. I apologise to readers as the transitional provision is in fact contained within The Civil Procedure (Amendment) Rules 2013, it states:

"The provision made by rule 47.20(1) to (5) and (7) in the Schedule (liability for costs of detailed assessment proceedings) does not apply to detailed assessments commenced before 1 April 2013 and in relation to such detailed assessments, rules 47.18 and 47.19 as they were in force immediately before 1 April 2013 apply instead."

One of the significant changes to the detailed assessment process is a new rule aimed at dramatically shortening optional replies to points of dispute. Practice Direction 12.1 to CPR Rule 47.13 now states: "A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses."

A "point of principle" is defined by Practice Direction 8.2 to CPR Rule 47.9 as being a matter: "which requires decision before the individual items in the bill are addressed".

The example given in Precedent G is: "The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings."

Replies dealing with matters such as the appropriate hourly rate, reasonableness of counsels' fee, reasonableness of attendances or document time are now not permitted. There is no transitional provision dealing with this change and therefore any replies served after 1 April 2013 should comply regardless of when the points of dispute were drafted. (Although, given it remains the case that if optional replies are to be served it should be done within 21 days of service of the points of dispute, by the time you are reading this all replies being served should fall under the new regime in any event.)

For those preparing points of dispute, the new requirements are set out in Practice Direction 8.2 to CPR Rule 47.9: "Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and

(b) identify specific points, stating concisely the nature and grounds of dispute.

Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G."

It very much remains to be seen whether the introduction of provisional assessment (with no oral hearing) for costs claims worth up to 75,000 will do anything to encourage "concise" disputes. It seems rather more likely that points of dispute will begin to resemble skeleton arguments.