MH sought to set aside a provisional assessment decision on grounds that it was void because it failed to satisfy two requirements in paragraph 14.3 of CPR PD47: (i) a failure to include an open offer and; (ii) a failure to include full points of dispute. As a reminder, paragraph 14.1 of CPR PD47 states that a provisional assessment takes place in detailed assessment proceedings for sums £75,000 or less.
A number of other points, including contempt of court, were raised by MH but were to be dealt with at the subsequent detailed assessment hearing. The case is unusual in the sense that Bedford CJ was reviewing his own provisional assessment decision, a position which MH said was akin to the judge “marking his own homework”.
Bedford CJ was, however, undeterred by that submission on account that he was, rather surprisingly not made aware of those failings before making the provisional assessment decision. In a statement marking his disappointment at such a state of affairs, he later said that the court “would have expected greater candour” from the parties in bringing the breaches to his attention.
Bedford CJ identified from the outset that the circumstances surrounding the key issues in dispute were irregular and he was unable to identify any appropriate authorities on the specific points in issue. The Judgment therefore provides useful guidance to cost practitioners engaged with similar circumstances.
At paragraph [47], Bedford CJ found that the procedure in CPR 47.15(7) is not designed to accommodate jurisdictional challenges to whether the provisional assessment was conducted correctly:
“[47] The scope of a review hearing under CPR 47.15(7) and (8) is intended to operate over items within the provisional assessment itself in respect of which an objecting party may wish to seek review. A jurisdictional challenge to whether the provisional assessment itself was conducted correctly or not is a challenge wider than that contemplated by CPR 47.15(7). To interpret the scope beyond that expressly provided for is, in my Judgment, wrong as a matter of literal and contextual interpretation. Consequently, I reject the proposition that the specific rule operates to the exclusion of the court’s case management powers in these circumstances.”
He drew specific attention at paragraph [48] to three key points which underline the scope and boundaries of the procedure in CPR 47.15:
- “CPR 47.15(7) is specific to items challenged within a provisional assessment;
- CPR 3.1(7) is available in respect of challenges external to items in the assessment, of which jurisdictional challenges are but one example;
- CPR 3.1(7) and CPR 47.15(7) therefore operate in tandem, albeit in respect of differing situations.”
The learned judge then went on to distinguish the relative importance of the two index failings finding that the failure to make an open offer was less significant when compared with the failure to file full points of dispute. At paragraph [58], he said:
“[58] I do not find that the failure to file the open offer so destructive such that it obviates whether the provisional assessment hearing was correctly requested or not. That is because the open offer is not fundamental to the court being able to fairly and appropriately conduct the assessment. However, the failure to file the full points of dispute is a failure of a different type and magnitude. The points of dispute are axiomatically fundamental and a failure to file a complete copy of the same does, in my Judgment entirely obviate the fair and due process of the assessment sufficient that it is destructive.”
Bedford CJ then went on to find that MH could not have requested a review hearing in any event because the provisional assessment process was only complete once the requirements in CPR PD47 had been fulfilled. At paragraph [60] he said:
“[60] In circumstances where the receiving party failed to correctly request a provisional assessment by filing the complete points of dispute, the erroneous decision was not a provisional assessment in the sense contemplated by CPR 47.15(7). Thus, the starting gun has not yet sounded for requesting a review hearing. Absent the application of the specific rule, the general rules in CPR 3.1(7) remain engaged and available.
[…]
[62] It is only upon receipt of the N258 and the supporting papers that the court is thereafter engaged with the function of undertaking a “provisional assessment” as per 47 PD para14.4 and CPR 47.15(4).”
At paragraph [69], Bedford CJ set out his key findings:
“[69] For these reasons, I find that CPR 47.15(7)(8) is not engaged and that CPR 3.1(7) is apposite.
[70] In so finding, I reject the proposition that I am effectively allowing an appeal from myself as contemplated by Stewart J at [§14] in PME v Scouts Association [2019] EWHC 3421(QB). I am not and have not revisited the issues determined as part of the erroneous provisional assessment for a second time. This decision is anterior to that process.
[…]
[71] Further, as I find that the specific rule is not engaged, I find the line of authorities cited by Mr Moss, of Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422 and Deutsche Bank AG v Unitech Ltd[2016] EWCA Civ 119 neither binding upon me nor instructive. They all confirm the proposition that the general rule must give way to the specific rule. That is not the situation before me for the reasons given.
[72] In particular, I do not find the direction as to lex specialis reasoning cited at [§80] Deutsche Bank to be determinative given the finding that the jurisdictional concerns expressed are antecedent to, and distinct from, the four corners of the assessment by reference to disposal of items captured by the intended review process under CPR 47.15(7)(8).”
Bedford CJ relied on several reasons for his decision to set aside the provisional assessment order, namely (i) missing documents, (ii) expenditure of court time, (iii) prompt application, (iv) clear breach of CPR PD47, (v) breach was serious and significant, (vi) there being no good reason for the breach.
The learned judge was not required to resolve, and made no further comment, on the issue raised by Stewart J in PME as to whether a provisional assessment order is appealable in circumstances where it is not binding on the parties until 21 days hence have expired. This was because the issue had been raised under the power to apply to set aside the order within seven days.
The provisional assessment order was then set aside. Further, Bedford CJ said that if he was wrong about that he finds that there were “exceptional circumstances” within in the meaning of CPR 47.15(7) to set the order aside in any event.
The judge then removed the matter from provisional assessment pursuant to CPR 47.15(6) and directed that it proceed to detailed assessment having regard to the issues, proportionality, and the fact that an oral hearing is likely to be requested in any event.
The judgement provides a thorough analysis and greater clarity on the correct procedure to be used when challenging a provisional assessment order in similar circumstances.
