We have often encountered difficulties when costs orders have not been termed correctly. One example is where a party failed to include the provision for costs to be assessed in the final Tomlin Order, and simply provided for the losing party to pay the winning costs ‘subject to agreement’. There was no reference to detailed assessment.
In order to commence detailed assessment proceedings, it is necessary to have a ‘right to detailed assessment’ (CPR 47.7). Such a right can arise only as a result either of a court order which states that costs are to be assessed, or a deemed order (for example as a result of acceptance of a CPR 36 offer, or upon notice of discontinuance under CPR 38). Importantly, where an order does not mention costs the general rule is that no party is entitled to its costs (CPR 44.10(1)).
Therefore, in the absence of the inclusion of the terms ‘subject to detailed assessment’ the court held that there was no authority for the costs to be assessed and adjourned the Detailed Assessment hearing.
The costs implications couldn’t be clearer. When concluding any claim it is vital that any Tomlin or Consent Order specifically makes reference to costs to be assessed. Costs Lawyers can assist with the terms of costs orders ensuring that these are completely watertight, and therefore avoiding the possibility of adverse costs or expensive satellite litigation.
You can contact the Clarion Costs Team on 0113 2460622, or by emailing Andrew.McAulay@clarionsolicitors.com.
