The Investment Bank Special Administration (England and Wales) Rules 2011

CHAPTER 10 Costs

Application of Chapter 10

261.—(1) This Chapter applies in relation to costs in connection with the special administration.

(2) In this Chapter, a reference to costs includes charges and expenses.

Requirement to assess costs by the detailed procedure

262.—(1) Where the costs of any person are payable as an expense out of the investment bank’s estate the amount payable must be decided by detailed assessment unless agreed between the administrator and the person entitled to payment.

(2) Where the costs of any person are payable as an expense out of the client assets, the amount payable must be decided by detailed assessment unless agreed between a meeting of clients and the person entitled to payment.

(3) In the absence of such agreement as is mentioned in paragraph (1) or (2), the administrator—

(a) may serve notice requiring that person to commence detailed assessment proceedings in accordance with CPR Part 47; and

(b) must serve such notice where the creditors’ committee resolves that the amount of the costs in either case must be decided by detailed assessment.

(4) Detailed assessment proceedings must be commenced in the High Court.

(5) Where the costs of any person employed by the administrator in the special administration are required to be decided by detailed assessment or fixed by order of the court, the administrator may make payments on account to such person in respect of those costs provided that person undertakes in writing—

(a) to repay as soon as reasonably practicable any money which may, when detailed assessment is made, prove to have been overpaid; and

(b) to pay interest on any such sum as is mentioned in sub-paragraph (a) at the rate specified in section 17 of the Judgments Act 1838 on the date payment was made and for the period beginning with the date of payment and ending with the date of repayment.

(6) In any proceedings before the court, the court may order costs to be decided by detailed assessment.

(7) Unless otherwise directed or authorised, the costs of the administrator are to be allowed on the standard basis for which provision is made in—

(a) CPR rule 44.4 (basis of assessment); and

(b) CPR rule 44.5 (factors to be taken into account when deciding the amount of costs).

Procedure where detailed assessment is required

263.—(1) Before making a detailed assessment of the costs of any person employed in the special administration by the administrator, the costs officer must require a certificate of employment, which must be endorsed on the bill and signed by the administrator.

(2) The certificate must include—

(a) the name and address of the person employed;

(b) details of the functions to be carried out under the employment; and

(c) a note of any special terms of remuneration which have been agreed.

(3) Every person whose costs in the special administration are required to be decided by detailed assessment must, on being required in writing to do so by the administrator, commence detailed assessment proceedings in accordance with CPR Part 47 (procedure for detailed assessment of costs and default provisions).

(4) If that person does not commence detailed assessment proceedings within 3 months of the requirement under paragraph (3), or within such further time as the court, on application, may permit, the administrator may deal with the investment bank’s estate without regard to any claim by that person, whose claim is forfeited by such failure to commence proceedings.

(5) Where in any such case such a claim lies additionally against the administrator in the administrator’s personal capacity, that claim is also forfeited by such failure to commence proceedings.

Costs of officers charged with execution of writs or other process

264.—(1) This rule applies where an enforcement officer, or other officer charged with execution of the writ or other person—

(a) is required under section 184(2) of the 1986 Act to deliver up goods or money; or

(b) has under section 184(3) of the 1986 Act(1) deducted costs from the proceeds of an execution or money paid to that officer or that person (as the case may be).

(2) The administrator may require in writing that the amount of the enforcement officer’s or other officer’s bill of costs be decided by detailed assessment and where such a requirement is made, rule 263(4) applies.

(3) Where, in the case of a deduction of the kind mentioned in paragraph (1)(b), any amount deducted is disallowed at the conclusion of the detailed assessment proceedings, the enforcement officer must as soon as reasonably practicable pay a sum equal to that disallowed to the administrator for the benefit of the investment bank’s estate.

Costs paid otherwise than out of the investment bank’s estate

265.  Where the amount of costs is decided by detailed assessment under an order of the court directing that those costs are to be paid otherwise than out of the investment bank’s estate or out of the client assets, the costs officer must note on the final costs certificate by whom, or the manner in which, the costs are to be paid.

Award of costs against the administrator

266.  Without prejudice to any provision of the Regulations or Rules by virtue of which the administrator is not in any event to be liable for costs and expenses, where the administrator is made a party to any proceedings on the application of another party to the proceedings, the administrator is not to be personally liable for the costs unless the court otherwise directs.

Applications for costs

267.—(1) This rule applies where a party to, or person affected by, any proceedings in the special administration applies to the court for an order allowing their costs, or part of them, incidental to the proceedings, and that application is not made at the time of the proceedings.

(2) The person concerned must serve a sealed copy of the application on the administrator.

(3) The administrator may appear on an application.

(4) No costs of or incidental to the application are to be allowed to the applicant unless the court is satisfied that the application could not have been made at the time of the proceedings.

(5) The court shall specify in the order whether such costs are to be paid out of the investment bank’s estate or out of the client assets.

Costs and expenses of witnesses

268.  Except as directed by the court, no allowance as a witness in any examination or other proceedings before the court is to be made to an officer of the investment bank to which the proceedings relate.

Final costs certificate

269.—(1) A final costs certificate of the costs officer is final and conclusive as to all matters which have not been objected to in the manner provided for under the rules of the court.

(2) Where it is proved to the satisfaction of a costs officer that a final costs certificate has been lost or destroyed, the costs officer may issue a duplicate.

(1)

Sections 184(2) and 184(3) were amended by the Courts Act 2003, section 109(1), Schedule 8, para 296(1)(3) and by S.I. 1986/1996.