PART 48COSTS—SPECIAL CASES

SECTION II—COSTS RELATING TO SOLICITORS AND OTHER LEGAL REPRE SENTATIVES

Personal liability of legal representative for costs—wasted costs orders48.7

(1)

This rule applies where the court is considering whether to make an order under section 51(6) of the Supreme Court Act 198173 (court’s power to disallow or (as the case may be) order a legal representative to meet, “wasted costs”).

(2)

The court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make such an order.

F1(3)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2(4)

When the court makes a wasted costs order, it must—

(a)

specify the amount to be disallowed or paid; or

(b)

direct a costs judge or a district judge to decide the amount of costs to be disallowed or paid.

(5)

The court may direct that notice must be given to the legal representative’s client, in such manner as the court may direct—

(a)

of any proceedings under this rule; or

(b)

of any order made under it against his legal representative.

(6)

Before making a wasted costs order, the court may direct a costs judge or a district judge to inquire into the matter and report to the court.

(7)

The court may refer the question of wasted costs to a costs judge or a district judge, instead of making a wasted costs order.

Basis of detailed assessment of solicitor and client costs48.8

F3(1)

This rule applies to every assessment of a solicitor’s bill to his client except a bill which is to be paid out of the Community Legal Service Fund under the Legal Aid Act 1988 or the Access to Justice Act 1999.

F4(1A)

Section 74(3) of the Solicitors Act 1974 applies unless the solicitor and client have entered into a written agreement which expressly permits payment to the solicitor of an amount of costs greater than that which the client could have recovered from another party to the proceedings.

(2)

F5Subject to paragraph (1A), costs are to be assessed on the indemnity basis but are to be presumed—

(a)

to have been reasonably incurred if they were incurred with the express or implied approval of the client;

(b)

to be reasonable in amount if their amount was expressly or impliedly approved by the client;

(c)

to have been unreasonably incurred if—

(i)

they are of an unusual nature or amount; and

(ii)

the solicitor did not tell his client that as a result he might not recover all of them from the other party.

F6(3)

Where the court is considering a percentage increase, whether on the application of the legal representative under rule 44.16 or on the application of the client, the court will have regard to all the relevant factors as they reasonably appeared to the solicitor or counsel when the conditional fee agreement was entered into or varied.

(4)

In paragraph (3), “conditional fee agreement” means an agreement enforceable under section 58 of the Courts and Legal Services Act 1990 at the date on which that agreement was entered into or varied.

Conditional fees48.9

F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assessment procedure48.10

(1)

This F8rule sets out the procedure to be followed where the court has made an order under Part III of the Solicitors Act 197476 for the assessment of costs payable to a solicitor by his client.

(2)

The solicitor must serve a breakdown of costs within 28 days of the order for costs to be assessed.

(3)

The client must serve points of dispute within 14 days after service on him of the breakdown of costs.

(4)

If the solicitor wishes to serve a reply, he must do so within 14 days of service on him of the points of dispute.

(5)

Either party may file a request for a hearing date—

(a)

after points of dispute have been served; but

(b)

no later than 3 months after the date of the order for the costs to be assessed.

(6)

This procedure applies subject to any contrary order made by the court.