The Powers of an SCCO Costs Officer

This is a point that is often overlooked by paying parties.

In my experience, and in general terms, Costs Officers in the SCCO have shown considerable expertise in their field over the years, save for the occasional suspect choice of footballing allegiance. Unlike most District Judges and even Regional Costs Judges they deal with absolutely nothing but costs. They deal with us costs draftsmen all day......every day. And they do that by deliberate choice. Crikey! Hats off to them!

But.... they do not enjoy the same range of powers on assessment as either the Masters, Costs Judges or District Judges in the provinces. Their powers are restricted by CPR 47.3 and there are two specific restrictions which are often overlooked -

Firstly 47.3(ii) removes the power to wield the sword of CPR 47.8, which encompasses reductions in both costs AND interest where there is a delay in commencing assessment proceedings. This does not represent a major problem because in most cases these days the issue of interest is pretty much black and white. If you are on time, you get your full entitlement to a whopping 8% in all its anachronistic glory; if you are late with your Notice of Commencement you concede for the period of the delay but, unless the paying party actually forced you into serving the N252, that is the worst you will suffer. Gone are the days when, under Order 62 rule 28, you could claim massive prejudice to your paying party client who secretly knew full well that the other side had forgotten to put a bill in and get a whole portion of the bill arbitrarily knocked off. 

Perhaps more controversially, 47.3(i) removes the power to to make potentially much more draconian orders in relation to misconduct under CPR 44.14.

And what does "misconduct" amount to? Well...the rule is quite clear - it includes failure to comply with a rule, practice direction or court order in the context of the assessment proceedings, or where "it appears to the court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper".

People sometimes run "misconduct" arguments without properly thinking through what they are doing. An assertion, no matter how ill founded, that a solicitor has mis-certified a bill and that the bill should therefore be struck out, is not a straight forward assessment point; it is a  very serious allegation to make against a professional person, a disciplinary matter (per LJ Henry in Bailey -v- IBC) and clearly a misconduct argument. If it is not a misconduct argument it is certainly an argument for a sanction arising from a breach of the Practice Direction concerning certification of a bill. 

So, if a paying party wishes to run such an argument, they must ensure that they are raising it before the correct level of Costs Judge. CPR 47.3(2) provides the mechanism for having the assessment transferred to a Master. Unless that is done, the Court simply cannot deal with the point and the paying party risks either dismissal of the point or adjournment and an application for wasted costs when the assessment does go before the Master. 

Paying parties should also perhaps learn the difference between "guideline rates" published for general consumption and rates contractually agreed between solicitor and client; if they still cannot sleep I would recommend s.59 of the Solicitors Act 1974, which is thrilling. I won't spoil the ending.