Are you in time….?

Jessica Swannell examines some of the issues around the three month deadline for claiming legal costs where the paying party is legally aided.

Failure to claim your legal costs within 3 months where the paying party is in receipt of Legal Aid and is funded by the CLS can have a catastrophic effect on your costs recovery.

Unfortunately, not all professionals are aware of the specific rules applicable to costs recovery against legally aided paying parties which can result in the receiving party losing their right to claim for their costs.

In regard to the procedure for Detailed Assessment where costs are payable out of the Community Legal Services fund, reference must be made to CPR 47.18 (1) and (2) which states:

(1) Where the court is to assess costs of a LSC funded client or an assisted person which are payable out of the Community Legal Services Fund, that person’s solicitor may commence detailed assessment proceedings by filing a request in the relevant practice form.

(2) A request under paragraph (1) must be filed within three months after the date when the right to detailed assessment arose.

The basis for recovering costs in civil proceedings where costs are payable out of the Community Legal Services Fund is set out within the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Section 1, as follows; ‘Costs ordered against an individual in relevant civil proceedings must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including (a)the financial resources of all of the parties to the proceedings, and (b) their conduct in connection with the dispute to which the proceedings relate.

With reference to Section 10 (3) (b) of the Civil Legal Aid (Costs) Regulations 2013, which states that; the non-legally aided party is to make a request (i) under regulation 16(2), within three months of the date on which the section 26(1) costs order is made; or (ii) after the expiry of the time limit under regulation 16(2), where there is a good reason for the delay in the request being made (emphasis added); it appears that this deadline is held to be definitive, in that the Application may not be made outside of this three month period unless there is deemed to be a ‘good reason’ for the delay. This is supported by the case of Jacqueline Floyd & S & LSC [2010], which argues that the Court had no discretion to extend the three month time limit.

The three month deadline is also adhered to in respect of a Supreme Court Order. It is stated within Section 7 of the Supreme Court Practice Direction 13, that a claim for costs in Form 5 must be filed within three months of the date of the date on which the relevant costs order is made and must at the same time be served on the other parties. However, contrary to an Application where the Claimant is legally aided, an extension for service of the Bill of Costs can be requested and must be made in writing or by email to the Costs Clerk and copied to the other parties. The request for an extension must be made within the 3 month period. If such an extension is agreed by the parties they should inform the Costs Clerk.

An application to file a Bill of Costs out of time made after the expiry of the three month period must be made in Form 2. In deciding whether to grant an application, the Registrar takes into account all the circumstances, including:

1. the interests of the administration of justice;

2. whether the failure to file in time was intentional;

3. whether there is a good explanation for the failure to file in time;

4. the effect which the delay has had on each party; and

5. the effect which the granting of an extension of time would have on each party.

In summary, the three-month deadline is a strict deadline that must be adhered to. It is deemed that there must be a good reason for any delay and any such reason must not be trivial in nature. While costs may be able to be recovered outside of the three-month deadline, it is not a risk that we would advise clients to take. In my own personal experiences of such cases, I believe it is important to adhere to the strict deadlines as identified above in order to protect the client’s position and avoid any unnecessary implications due to late service. In addition, service prior to the three-month deadline allows for any issues to be resolved between the parties before Detailed Assessment proceedings are commenced.

Jessica Swannell is a Costs Lawyer & Practice Manager at A&M Bacon Limited.