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Judgments

Practice Directions Applicable to Judicial Taxations

HOUSE OF LORDS

PRACTICE DIRECTIONS

APPLICABLE TO

JUDICIAL TAXATIONS

IN THE HOUSE OF LORDS

MARCH 2007

Approved by the House of Lords on 26 February 2007

This edition replaces all previous editions

MINUTES OF PROCEEDINGS

OF THE HOUSE OF LORDS

MONDAY 26 FEBRUARY 2007

Judicial Business

The 27th Report from the Appeal Committee was agreed to and the following Order was made:

Judicial taxation practice directions That the practice directions applicable to judicial taxations be revoked and that the new edition agreed by the Committee be promulgated by the Clerk of the Parliaments.

CONTENTS

General information

Admission passes

PART 1: PRACTICE DIRECTIONS APPLICABLE TO JUDICIAL TAXATIONS

1.   Introduction

2.   Entitlement to costs

3.   Orders under direction 5.1(d) of the Practice Directions applicable to civil appeals

4.   Orders under section 11 of the Access to Justice Act 1999

5.   Lodgment

6.   Extension of time

7.   Form of bill

8.   Endorsement

9.   Documents

10.   Basis of taxation

11.   Fees for preparing petitions for leave to appeal

12.   Funded parties: petitions for leave to appeal

13.   Respondents' objections

14.   Funded parties: provisional taxation

15.   Taxation before Taxing Officers.

16.   Taxing Officers' discretion (civil appeals)

17.   Taxing Officers' discretion (criminal appeals)

18.   Appeals against taxation in the House of Lords

19.   Allocatur (agreed cost figures)

20.   Certificate of discharge

21.   Vouching

22.   Summary

23.   Fees

24.   Certificates

25.   Interest

26.   Quantum: guidelines on fees allowed

27.   Conditional fee agreements

28.   Costs of litigants in person

29.   Costs of drafting bill for taxation

PART 2: FORMS OF BILLS OF COSTS

Form A: Respondent's bill of costs under Direction 5.1 Civil

Form B: Appellant's bill of costs of a petition for leave, an incidental petition and a petition of appeal

Form C: Respondent's bill of costs including separate accounts for Scottish and English agents

PART 3: ALLOCATURS AND SUMMARIES OF BILLS OF COSTS

1   Summary (between parties- Central Funds)

2   Summary (funded)

3   Allocatur (agreed costs figures)

PART 4: FEES

1   Judicial fees

2   Taxing fees

3   Security money and security for costs

PART 5: GUIDELINE FIGURES FOR SUMMARY ASSESSMENT OF COSTS

PART 6: EXTRACTS FROM THE PRACTICE DIRECTIONS APPLICABLE TO CIVIL APPEALS (2007)

 

JUDICIAL OFFICE, HOUSE OF LORDS, LONDON SW1A 0PW

Telephone: 020-7219 3111

Fax: 020-7219 2476

www.parliament.uk

_____________________________

Houses of Parliament (Switchboard): 020-7219 3000

   The Judicial Office is open during term time on Mondays to Thursdays from 10am to 5pm and on Fridays from 10am to 4 pm; and daily from 10am to 4pm when Parliament is in recess. The Office is closed from 1pm to 2pm each day, and until midday on the occasion of the State Opening of Parliament.

TAXATION AND FEES

   Taxation enquiries should be made to the Judicial Taxing Clerk (tel: 020-7219 3105).

Fee enquiries should be made to the Judicial Office (tel: 020-7219 3111).

   Drafts and cheques for fees, including taxing fees, should be made payable to 'House of Lords Account'.

   Drafts and cheques for security money only should be made payable to 'House of Lords Security Fund Account'.

ADMISSION PASSES

   Persons attending taxations do not need an admission pass. Entry to the Palace of Westminster is via the St Stephen's entrance. The police on duty there will give directions to Committee Room No 2, where taxations take place.

   Admission passes to the Palace of Westminster are however required for all those attending the Judicial Office to lodge documents, pay fees etc. Application for passes should be made in person to the Pass Office, where a day-pass will be issued.

   The Pass Office is located at Black Rod's Garden entrance near the Victoria Tower.

HOUSE OF LORDS

PRACTICE DIRECTIONS APPLICABLE TO JUDICIAL TAXATIONS

1. INTRODUCTION

    1.1   Taxations (assessments of costs) in the House of Lords are conducted by the Taxing Officers. There are two Taxing Officers: the Head of the Judicial Office and the Senior Costs Judge of the Supreme Court of England and Wales or any costs judge nominated by him. The Taxing Officers normally sit together as a court of two.

    1.2   The Taxing Clerk is an official in the Judicial Office of the House of Lords acting under the direction of the Taxing Officers.

    1.3   Taxations are conducted in public, usually in Committee Room No 2 on the Committee Corridor of the Palace of Westminster.

    1.4   Taxations are governed by the directions contained in the present booklet and in the booklets of Civil and Criminal Practice Directions (the "Blue Book" and the "Red Book") available from the Judicial Office and on the Internet1. As a general rule, the rules and practice directions relating to Parts 43 - 48 of the Civil Procedure Rules are applied by analogy at the discretion of the Taxing Officers, with appropriate modifications for appeals from Scotland and Northern Ireland. The legal principles applied are those also applicable to taxations between parties in the High Court and Court of Appeal in England and Wales2.

    1.5   References in this booklet to "the Taxing Officer" include the plural; and references to "costs" and "bills of costs" include expenses and accounts of expenses in appeals from Scotland.

2. ENTITLEMENT TO COSTS

    2.1   Bills of costs may be lodged in the Judicial Office for taxation in the following circumstances:

    (a)   costs payable by appellants, respondents or other persons under an order for costs made by an Appeal Committee or by an Appellate Committee;

    (b)   costs payable by the Legal Services Commission (LSC) consequent upon an order for costs made by an Appeal Committee or by an Appellate Committee to which section 11 of the Access to Justice Act 1999 applies3;

    (c)   costs payable to solicitors, counsel or other legal representatives acting on behalf of a party whose legal proceedings in the House of Lords were publicly funded.

3. ORDERS UNDER DIRECTION 5.1(d) OF THE PRACTICE DIRECTIONS APPLICABLE TO CIVIL APPEALS (2007)

    3.1   This paragraph applies to a respondent who is granted liberty to apply for his costs in accordance with direction 5(1)(d) of the Practice Directions relating to civil appeals (2007)4.

    3.2   The application may be made by letter addressed to the Judicial Office or may be included in a bill of costs lodged in the Judicial Office conditional upon the application being granted.

    3.3   As a general rule the Judicial Office does not grant the application in any of the following cases:

    (a)   where the petition for leave was not served on the respondent making the application;

    (b)   where the respondent making the application did not enter an appearance to the petition for leave;

    (c)   where the application is made by one of two or more respondents and the Judicial Office is not satisfied that the applicant had an interest in the petition for leave that required separate representation.

4. ORDERS UNDER SECTION 11 OF THE ACCESS TO JUSTICE ACT 1999

    4.1   Any costs ordered to be paid by a LSC funded party must not exceed the amount which is a reasonable one for them to pay having regard to all the circumstances including the financial resources of all the parties to the proceedings and their conduct in connection with the dispute to which the proceedings relate (Access to Justice Act 1999, section 11)5.

    4.2   Costs which were incurred by one party during a period when another party was LSC funded and which are not recoverable from the LSC funded party only because of section 11 of the Access to Justice Act 1999 may, in certain circumstances, be payable by the LSC itself.

    4.3   The Community Legal Service (Costs) Regulations 2000 and the Community Legal Service (Costs Protection) Regulations 2000 are Regulations made under section 11 of the Access to Justice Act 1999 and provide a code governing orders for costs against LSC funded parties and against the LSC.

    4.4   A party who seeks costs against the LSC under section 11 of the Access to Justice Act 1999, or who may do so, depending upon the amount of costs payable by the LSC funded party, must lodge with his bill of costs copies of any documents (including a statement of resources and any notice served by him on the LSC) which he has served upon others in compliance with the regulations.

    4.5   Within 21 days of being served with a bill of costs to which section 11 of the Access to Justice Act 1999 applies, a party who is or was LSC funded during any period covered by the bill must respond by lodging in the Judicial Office a statement of resources and serving a copy of it on the receiving party and, where relevant, on the Regional Director of the LSC.

    4.6   The Regional Director of the LSC may appear at any hearing at which a costs order may be made against the LSC.

5. LODGMENT

    5.1   Bills of costs for taxation must be lodged within three months of either:

    (a)   the date on which the final judgment in the appeal is delivered; or

    (b)   the date on which a petition for leave to appeal is dismissed by an Appeal Committee; or

    (c)   the date on which a petition for leave or a petition of appeal is withdrawn.

6. EXTENSION OF TIME

    6.1   If an extension of the three month period is desired, application must be made in writing to the Taxing Officer before the end of that period. Copies of all such correspondence should be sent to all interested parties.

    6.2   Applications for extensions of time are also accepted even if made after the expiry of the three month period. In deciding whether to grant an application the Taxing Officer takes into account all the circumstances, including:

    (a)   the interests of the administration of justice;

    (b)   whether the failure to lodge in time was intentional;

    (c)   whether there is a good explanation for the failure to lodge in time;

    (d)   the effect which the delay has had on each party; and

    (e)   the effect which the granting of an extension of time would have on each party.

7. FORM OF BILL

    7.1   The items on a bill should be numbered consecutively as shown in Part 2 below and similarly worded where possible. Parties or their agents should adhere to the items shown so far as possible. The standard three column bill paper should be used.

    7.2   Where costs are to be taxed both on a between the parties basis and under the Access to Justice Act 1999 or the Legal Aid (Scotland) Act 1986 or the Second Schedule to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, a six column bill should be drawn.

8. ENDORSEMENT

    8.1   The bill must be endorsed before lodgment with a certificate of service on the parties entitled to be represented at the taxation or their agents. Information about the date and time of the taxation is sent to all such parties or agents.

9. DOCUMENTS

    9.1   The following documents must be lodged with the Taxing Clerk:

    (a)   the bill plus two copies;

    (b)   counsel's fee notes;

    (c)   written evidence of any other disbursement which is claimed and which exceeds 500.

    9.2   Other papers on which parties or agents intend to rely may be brought to the taxation hearing or lodged with the Taxing Clerk as he thinks appropriate.

10. BASIS OF TAXATION

    10.1   Unless otherwise provided for by order or direction, costs in the House of Lords are ordered to be taxed on the standard basis or on the indemnity basis in accordance with Part 44.4 of the Civil Procedure Rules or the equivalent bases that apply in Scotland and Northern Ireland.

11. FEES FOR PREPARING PETITIONS FOR LEAVE TO APPEAL

    11.1   The general rule is that a single fee is allowed for one junior counsel for preparing petitions for leave to appeal. Rarely, if ever, are fees allowed for two counsel, but a fee may be allowed for a Queens Counsel instead of junior counsel if this is held to be necessary because of the difficulty or complexity of the case or other good reason6.

    11.2   In a publicly funded application for leave to appeal, a fee for Queen's Counsel is not allowed unless permission has been given by the relevant funding authority.

    11.3   For guideline figures for fees on petitions for leave to appeal, see direction 26.5.

12. FUNDED PARTIES: PETITIONS FOR LEAVE TO APPEAL

    12.1   Where a petitioner for leave to appeal is publicly funded and the petition is dismissed without an oral hearing:

    (a)   reasonable costs may be awarded for preparing the petitioner's papers for the Appeal Committee;

    (b)   a publicly funded respondent may be awarded costs incurred in attending the client, entering appearance and, where applicable, preparing respondent's objections to the petition;

    (c)   an unassisted respondent may be awarded costs similar to those at (b) above out of the Community Legal Service Fund pursuant to s.11 of the Access to Justice Act 1999 or the equivalent provisions in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

    12.2   If a petition for leave to appeal is dismissed after an oral hearing, the costs of the hearing are allowable in addition to the costs at (a) to (c) above.

13. RESPONDENTS' OBJECTIONS

    13.1   Respondents to a petition for leave to appeal who submit respondents' objections pursuant to direction 4.10 of the Practice Directions relating to civil appeals (2007)7 may apply for costs in accordance with directions 3 and 4 above. For guideline figures for preparing respondents' objections, see direction 26.5.

14. FUNDED PARTIES: PROVISIONAL TAXATION

    14.1   A provisional taxation procedure exists for the taxation of costs involving public funding. In such cases a provisional taxation is conducted without the attendance of the parties, and the Taxing Clerk informs them in writing of the outcome. If the result of this procedure proves unsatisfactory to the parties, or if points of disagreement cannot be resolved in correspondence, the Taxing Officer appoints a date for a hearing.

    14.2   Large or complex bills, and bills to be taxed between the parties, are not usually dealt with by provisional taxation procedure but at a hearing before the Taxing Officers.

    14.3   Any request for a hearing following a provisional taxation must be made within fourteen days of the receipt of the letter from the Taxing Clerk.

15. TAXATION BEFORE TAXING OFFICERS

Points of dispute

    15.1   Paying parties who wish to lodge points of dispute must do so within 21 days of service of the bill upon them, and must at the same time serve a copy of the points of dispute on every other party. The points of dispute must be properly endorsed with a certificate of service. The receiving party may within 21 days from service of the points of dispute respond to the points if they think it appropriate to do so.

    15.2   Where the paying party does not lodge points of dispute and fails to attend a taxation, the Taxing Officer may nevertheless tax the bill, but generally allows the bill to the extent that it appears reasonable and (if appropriate) proportionate.

Date of taxation hearing

    15.3   The Taxing Officer gives at least 21 days' notice of the day and time appointed for taxation to all those entitled to be heard at the taxation. Only the parties or their agents who were responsible for the case in the House of Lords or their deputies have a right to be heard. For the purpose of this direction, a deputy may be another member of the agent's firm, or the London agent, or the costs draftsman; but those attending must be fully conversant with the matters to be considered.

Attendance at taxations

    15.4   The receiving party or their agent must attend the taxation.

Counsel

    15.5   Where costs are to be taxed on a between the parties basis, submissions on counsel's fees may be made at the taxation hearing. In publicly-funded cases (where there may not be a formal taxation or hearing: see direction 14) any submissions by counsel in respect of their own fees following the provisional taxation should be made in writing to the Taxing Officer. If a formal taxation then takes place, submissions on counsel's fees may be made at the hearing. It is not usual for counsel or their clerks to attend before the Taxing Officers, but they may do so if they wish.

16. TAXING OFFICERS' DISCRETION (CIVIL APPEALS)

    16.1   The Taxing Officers have discretion as to the amount to allow. In exercising this discretion they bear in mind the terms "unreasonably incurred" and "unreasonable in amount" in CPR 44.4, or in appeals from Scotland the provisions of Rule 42.10 of the Rules of the Court of Session 1994, and in particular consider to what extent an item assisted the House in determining the appeal. In the case of petitions for leave to appeal, a major consideration is whether the petition gave rise to a point of public importance.

    16.2   The length of a hearing, the complexity of the issues as indicated by the judgments delivered in the House, and the general level of fees sought and allowed in the lower courts are taken into account.

    16.3   Counsel's fees are assessed in respect of each item of work counsel has undertaken. It is helpful therefore in drawing a bill to apportion counsel's work according to the categories set out in directions 26.5 and 26.7. The number of hours spent by counsel in preparation is not usually of assistance to the Taxing Officers when assessing the quantum of counsel's fees at any stage of the proceedings.

    16.4   The Taxing Officers have discretion to allow Queen's Counsel's fees for petitions for leave to appeal (subject to direction 11).

17. TAXING OFFICERS' DISCRETION (CRIMINAL APPEALS)

    17.1   In the taxation of bills in criminal appeals8 the Taxing Officers follow the recommendations of the Report of the Appeal Committee agreed to by the House of Lords on 14 October 19989.

    17.2   The Taxing Officers do not generally take into account the hours spent by counsel in preparation (paragraphs 40-42 of the above-mentioned Report).

    17.3   The Taxing Officers have discretion to allow Queen's Counsel's fees for petitions for leave to appeal (subject to direction 11).

18. APPEALS AGAINST TAXATION IN THE HOUSE OF LORDS

Application for leave to appeal against taxation

    18.1   Any party to a taxation who is dissatisfied with all or part of a decision of the Taxing Officer may seek leave to petition the House.

    18.2   Such an application for leave may be made only on a question of principle and not in respect of the quantum allowed on any item.

    18.3   An application for leave to present such a petition must be made within 14 days after the decision of the Taxing Officer or such longer period as may be fixed by him.

Written grounds of appeal

    18.4   An application for leave to present a petition must be accompanied by written submissions setting out the items or parts of items objected to and stating concisely in each case the nature and grounds of the objections. A copy of the grounds of appeal must be delivered to each party who attended the taxation of those items.

    18.5   Any party to whom a copy of the grounds of appeal is delivered may, within 14 days after delivery of the copy to them or such longer period as may be fixed by the Taxing Officer, submit in writing to the Taxing Officer their answers to the grounds of appeal. They should state concisely the reasons why they are opposed to a review of the item(s), and must at the same time deliver a copy of their answers to the party applying for review and to each party to whom a copy of the grounds of appeal has been delivered.

Reference to a Lord of Appeal

    18.6   When he has received all the necessary documents, the Taxing Officer refers the matter to a Lord of Appeal in Ordinary nominated by the senior Lord of Appeal in Ordinary who heard the appeal or petition for leave to appeal.

    18.7   The nominated Lord of Appeal in Ordinary decides whether the matter should be referred to an Appeal Committee. If he is of the opinion that the matter should not be so referred, the decision of the Taxing Officer is affirmed.

Petition to the House

    18.8   If the nominated Lord of Appeal in Ordinary decides that the matter should be referred to an Appeal Committee, the party disputing the decision of the Taxing Officer may, within 14 days of the date on which that decision is communicated to the parties, present an incidental petition to the House of Lords in accordance with direction 39 of the Practice Directions applicable to civil appeals (2007)10.

    18.9   Such a petition is referred to an Appeal Committee, which considers whether it should be referred for hearing.

19. ALLOCATUR (AGREED COSTS FIGURES)

    19.1   Forms of allocatur are obtained from the Taxing Clerk at the taxation hearing and must be returned by the receiving party to the Taxing Clerk within one month, signed by all parties who attended the taxation or their agents, together with the completed bill and taxing fee. Specimen forms are set out in Part 3 below.

    19.2   If a paying party refuses to sign the form of allocatur, the signature of the receiving party will be sufficient, provided the Taxing officer is satisfied that the paying party has refused to sign without good reason.

20. CERTIFICATE OF DISCHARGE

    20.1   A certificate in the following form may be accepted as evidence of payment of any disbursement not exceeding 500 (other than fees to counsel) provided that the paying party does not object, and subject to any direction to the contrary that may be given by the Taxing Officer:

    We A.B. & Co.,

    Hereby certify that all disbursements listed in the

    taxed bill in the matter of C. v. D. which individually

    do not exceed 500 (other than those relating to

    counsel's fees) have been duly discharged.

    Signed   A. B. & Co.

21. VOUCHING

    21.1   Unless covered by a certificate of discharge (see paragraph 20), receipted vouchers must be produced on completion of the bill. Counsel's fee notes must be receipted except in the case of publicly funded bills. Parties or their agents wishing to attend to vouch and complete bills should make an appointment with the Taxing Clerk.

22. SUMMARY

    22.1   The completed bill of costs must include a summary (see Part 3 below) showing the total amount allowed and the total amount of any VAT which is recoverable thereon.

    22.2   Where costs are payable under a certificate of public funding or representation order, a summary showing the respective amounts of profit costs, counsel's fees, other disbursements and VAT should be shown at the end of the bill.

23. FEES

    23.1   Taxing fees are set out in Part 4 below.

    23.2   The receiving party is responsible for paying the taxing fee.

    23.3   The receiving party is responsible for paying the fee on a withdrawn bill.

    23.4   Reduced fees are payable when costs are agreed before taxation. Responsibility for informing the Taxing Officer that agreement has been reached lies with the receiving party, but both parties must confirm the agreement in writing.

    23.5   Drafts and cheques for fees are payable to "House of Lords Account".

24. CERTIFICATES

Civil

    24.1   When the taxing fee has been paid, a certificate of taxation for the costs as allowed will be sent to the parties or their agents who lodged the bill, except in the case of respondents whose costs can be wholly satisfied from money deposited as security for costs (see direction 23 of the Practice Directions applicable to civil appeals (2007)).

Criminal

    24.2   Where costs have been ordered to be paid out of Central Funds or where costs are paid under Legal Aid Orders issued by the Registrar of the Court of Appeal (Criminal Division), the certificate and counsel's fee notes are sent to the Supreme Court Accounts Office to settle the certificated amounts with the parties or their agents and counsel direct.

Courts-Martial

    24.3   Where costs are payable to the Secretary of State for Defence in respect of an appeal from the Courts-Martial Appeal Court, the certificate is sent direct to the Ministry of Defence to settle as in 24.2 above.

Criminal (Northern Ireland)

    24.4   Where the costs are payable in accordance with s.41 of the Criminal Appeal (Northern Ireland) Act 1980 the certificates are sent to the Northern Ireland Office to settle as in 24.2 above.

25. INTEREST

    25.1   Interest is chargeable on orders made in respect of costs between the parties and orders for costs in favour of successful unassisted parties. The rate of interest is in accordance with the provisions of the Judgement Act 1838, as amended, and interest accrues from the day on which the order of the House is made or such other date as the House may specify.

    25.2   It is within the discretion of the Taxing Officer to vary the period for which interest is allowed in any case where the circumstances make it appropriate to do so.

26. QUANTUM: GUIDELINES ON FEES ALLOWED

Solicitors practising in England and Wales11

    26.1   The guideline rates set out in Part 5 below are used. These are consolidated figures that include a mark-up for care and attention. No further mark-up is allowed for care and attention.

    26.2   For convenience the following table summarises the hourly rates and localities set out in Part 5 below:

Grade of fee earner:-

A

B

C

D

City of London

380

274

210

129
Central London

292

222

181

116
Outer London

210-246

158-210

152

111
Non-London Band 1

195

173

145

106
Non-London Band 2

183

161

133

101
Non-London Band 3

167

150

128

95

An explanation of the grades and details of localities will be found in Part 5 below.

    26.3   A common mistake is to use senior solicitors or solicitors' staff at a level higher than the work requires. Allowances at the "A" rate will rarely be appropriate.

    26.4   When travel and waiting is claimed, this is allowed at the rate agreed with the client, unless this is more than the hourly rate allowed on the assessment.

Letters and telephone calls are allowed at one tenth (1/10) of the hourly rate.

Counsel

    26.5   The following guideline figures are used in assessing payments to counsel:

Petitions for leave, civil and criminal

Junior

QC (subject to direction 11)
Settling petition

800

1000
Advice (if any) for Legal Services
Commission or Legal Aid Board in Scotland or Northern Ireland

275

350
Preparing respondents' objections

550

750
Attending oral hearing by Appeal Committee

1100

1600

    26.6   If an increase is sought on any of the above items, it must be explained in a note from counsel. No other payments are allowed at the leave to appeal stage.

    26.7   The general rule is that only one counsel's fees are allowed on taxation for any stage of a petition for leave to appeal, even if a public funding or legal aid certificate authorises two counsel (see direction 11).

    —Appeals—civil and criminal

Junior

QC
Settling petition of appeal

75

75
Statement of facts and issues

1750

3500
Authorities

600

1200
Conferences (each, up to a maximum of six)

350

700
Advice

800

1600
Brief (based on a 1 day hearing)

6250

12500
Brief (based on a 2 day hearing)

8000

16000
Refresher (from day two of the hearing)

1250

2500
Attendance at Judgment

150

150

Notes

    26.8    Generally counsel for an appellant commands a higher fee than counsel for a respondent.

    26.9    The brief fee includes all work on the brief, the case and the first day of attendance at the Appellate Committee.

    26.10   The Taxing Officers exercise discretion in instances where junior counsel has undertaken most of the work on a particular item.

    26.11    On a petition of appeal and on attending judgment, only one counsel's fee is permitted.

    26.12    These fees are intended as a guide. If counsel seek higher fees, they must explain in a note.

27. CONDITIONAL FEE AGREEMENTS

    27.1   Notification should be given to the opposing parties and to the Judicial Office as soon as practicable after a conditional fee agreement has been entered into12. The Taxing Officers decide questions of percentage uplift in accordance with the principles set out in Designers' Guild Limited v. Russell Williams (Textiles) Limited (Trading as Washington D.C.) [2003] 2 Costs LR 204.

 
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