Courts can and should order costs

5 Nov 2014Feature

District Judge Marshall Phillips considers a new approach to pre-action disclosures

We are, I hope all familiar with the provisions of the Civil Procedure Rules (CPR) 31.16, which enables an application to be made to the court for an order for disclosure before proceedings have started (CPR 31.16(1)).

The relevant requirements for such an order under rule 31.16 are:

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where–

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

Reflect on how these applications are considered by the court. Some courts automatically list such applications for hearing (with an estimated time of 15 to 30 minutes or longer).

However, there is considerable pressure on civil lists and parties are having to wait longer and longer for hearing dates, some courts believe that dealing with such applications without a hearing is a more efficient and proportionate way of proceeding.

Much depends of course on the circumstances of the case.
For example, in a straightforward personal injury accident claim, whether at work or not, and where the documents requested are those set out in the protocol, and where despite chasing letters nothing has been heard from the defendant and the period for responding has expired, why should the court not deal with such applications on the given papers. This can be done in a judge’s daily box work, with the order including the usual CPR 23.10 paragraph so that the defendant can apply to set aside or vary the order if unhappy.

Applications where there has already been delay owing to failure to comply with the protocol can then be dealt with speedily.

Costs

And what about the costs of the application? CPR 46.1(2) certifies that the court will award the person against whom the order is made their cost of the application and enforce compliance with any order made; in other words, the applicant must pay.

However, CPR 46.1(3 )
provides that the court can make a different order if consideration is given to all circumstances, including the extent to which the defendant has sought to oppose the application and whether the parties have complied with any relevant pre-action protocol.

In a case where there is blatant failure to comply with the protocol and failure to respond to any correspondence (including chasing letters sent at appropriate stages of the case), the court can be asked to order the defendant to pay the costs.

I stress that this suggestion is my own personal view, and that other judges may not agree with it. However, I see no reason why, in suitable cases, this approach cannot be adopted.

Finally, there appears to be a growing trend for applications for pre-action disclosure to be made by grade A practitioners, claiming high hourly rates. The vast majority of these applications do not justify an experienced solicitor being involved, and if they continue to submit such applications, they will find that the hourly rate is reduced to that of a grade C
fee earner (or in some cases a grade D). SJ

POCKET NOTES

Choose your case carefully and consider whether an application for pre-action discovery is proportionate.
Exhibit all correspondence to which you are going to refer in the application and deal with any responses received.
Keep the evidence in support as brief as possible.
Ensure that you enclose a signed schedule of costs in form N260.
Be sensible about the level of costs being claimed; most of these applications are straightforward and can be dealt with by grade C or D fee earners and the guideline hourly rate will be applied.