In my article Calling Time: Requesting an Oral Assessment, I gave a brief overview of the consequences of the decision in Martin -v- The Leeds Teaching Hospitals NHS Trust (4th March 2016). A recent decision in the Leeds County Court has given further weight to the distinction between relief from sanction, and the application of CPR 47.15(7).
As this recent decision is in proceedings which are ongoing, I shall refer to the matter simply as A -v- B; the receiving party way A.
In this case, a provisional assessment had been carried out and the Court gave notice of the result on 10 February 2016. This notice specifically stated that ‘any party wishing to challenge any aspect of the provisional assessment must within 21 days of receipt of this notice file and serve on all other parties a written request for an oral hearing… if no such request is filed within that period, the provisional assessment will be binding on all parties, save in exceptional circumstances’. This mirrors the wording of CPR 47.15(7).
A copy of the Notice was received by the Claimant’s solicitors on 12 February 2016, and in accordance with CPR 6.26 it was deemed to have been served on all parties on that date. [i]As the notice was ‘received’ by the parties on 12 February 2016, the last date on which service was required to be effected in accordance with CPR 47.15(7) was 4 March 2016.
The parties duly agreed the amounts which the Court had allowed, and the Claimant requested that the Defendant confirm whether it intended to request an oral assessment.
At 15:37 on 4 March 2016, the Defendant sent a copy of a request for an oral assessment to the Claimant’s solicitor’s costs agents, by email.
Unfortunately for the Defendant, the Claimant’s solicitor’s costs agent:-
- Was not a valid address for service (as the address for service was the Claimant’s solicitor’s address); and
- Did not in any event accept service by email.
The Claimant argued that it was a matter of fact that the Defendant’s request for an oral assessment had not been served, and therefore the requirements of CPR 47.15(7) had not been fulfilled. Accordingly the Provisional Assessment was binding and the Defendant had no right to request an oral assessment as the time for doing so had (by then) elapsed.
The Defendant argued that the file handler responsible for serving the request had only recently been assigned to the case, had been unaware that the notice of change had been filed nor aware that the Claimant’s solicitor’s agents did not accept service by email. The Defendant stated that the Claimant’s arguments were ‘spurious’[ii] and therefore refused to withdraw its request for an oral assessment, or make payment of the sums allowed.
On 30 March 2016 the Court ordered that the ‘request for a review of the [provisional assessment] is refused as the request to the Claimant’s solicitors was not made in accordance with the rules in particular CPR 47.15(7).’
It cannot be overstated that the principles set out in Denton -v- TH White Ltd [2014] EWCA Civ 906 in relation to the general power of the court to grant relief from sanctions pursuant to CPR 3.9 are not applicable where there is a specific test set out within the Rules. In the case of CPR 47.15(7) the test is whether the reasons for the party failing to comply with the rules for requesting a hearing are ‘exceptional’, however I would argue that the principle clearly extends to any rule which sets out specific criteria to be satisfied in the event of default.
In summary, any party wishing to request an oral assessment hearing must ensure that the rules are complied with to the letter. It is incumbent upon the legal representatives of the party requesting the oral assessment to ensure that their client is fully advised of the risks of delaying making the request to the last possible moment; those who fail to do so risk a negligence claim against them.
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[i] It is potentially open to either party to argue that the requirements of service are irrelevant, as CPR 47.15(7) refers to receipt, not service, however this point was not relevant in this case. In any event it would be for the party alleging that it had not received the notice to prove this to be the case, and therefore it is likely that the rules of service would in any event be relevant as a yardstick.
[ii] It is worth pointing out that the rules of service are specifically defined, and that Pursuant to CPR 6 PD 6A (4.1) service cannot be effected by email unless either the party on which the document is to be served has agreed to this method in writing, or where an email address is provided on that party’s headed paper and it explicitly states that service is accepted by email to that address.
