Overview of New Civil Procedure Rules on Costs: CPR Parts 58 & 59

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The new Civil Procedure Rules (CPR) Parts 58 & 59 introduce changes in the assessment and taxation of costs in legal proceedings. Detailed assessment replaces taxation, standard basis, fixed costs, and more defined, with new definitions and procedures outlined. Order 59 expands the powers to tax costs, encompassing various scenarios where costs may arise in legal matters.

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INTRODUCTION TO THE NEW CIVIL PROCEDURE RULES ( CPR ) PARTS 58 & 59 - COSTS ]Life after costs to be taxed if not agreed Presenters: Camille Darville Gomez Registrar Kahlil Parker President Bahamas Bar Association Meryl Glinton

OVERVIEW The existing provisions on Costs contained in Order 59 of the Rules of the Supreme Court Costs provisions in the new Civil Procedure Rules are set out in CPR 58 & 59 CPR contains new provisions 58 entitled Costs: general provisions CPR assessment of costs mirrors for the most part Order 59 save that taxation is now called detailed assessment 59 entitled Procedure for detailed

CPR 58 Definitions Certificate and costs have the same meaning as it does in Order 59 rule 1 New definitions: Detailed assessment means the procedure by which the amount of costs is decided by the Registrar in accordance with Part 59 (i) (ii) Fixed costs means the amounts which are to be allowed in respect of attorneys charges in the circumstances set out in Para 58 Section V (Practice Direction)

DEFINITIONS CONTD Fund includes any estate or property held for the benefit of any person or class of person and any fund to which a trustee or personal representative is entitled in that capacity Indemnity costs set out in CPR 58.4 Paying party means a party liable to pay costs Receiving party means a party entitled to be paid costs Standard basis set out in CPR 58.4 Summary assessment means the procedure by which the court when making an order about costs, order payment of a sum of money instead of fixed costs (i) (ii) (iii) (iv) (v) (vi)

ORDER 59 POWERS TO TAX COSTS CPR 58.2(2) COSTS INCLUDE ORDER 59.12 - IS CPR 58.2(2) TO BE (i) Costs of proceedings in the Supreme Court no change (ii) Costs of proceedings before an arbitrator or umpire no change (iii) Costs of proceedings before a tribunal or other statutory body (v) Costs payable by a client to his attorney (vi) Where court orders assessment of costs payable by one party to another under contract (i) Costs of or arising out of any cause or matter in the Supreme Court (ii) Costs directed by an award made on a reference to arbitration (iii) Any other costs directed by an order of the court

CPR 58.3 COURTS DISCRETION AND CIRCUMSTANCES TO BE TAKEN INTO ACCOUNT WHEN EXERCISING ITS DISCRETION AS TO COSTS Existing provisions: (i) Order 59 rule 5 refers to matters taken into account by the court in exercising its discretion as to costs; (ii) Order 59 rule 7 refers to costs arising from misconduct or negligence New Provisions greater detail of the court s discretion and how it would be exercised

CPR 58.4 - BASIS OF ASSESSMENT Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs (a) on the standard basis; or (b) on the indemnity basis But the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. Rule 58.12 sets out how the court decides amount of costs payable under a contract

CPR 58.5 FACTORS TO BE TAKEN INTO ACCOUNT IN DECIDING THE AMOUNT OF COSTS Factors include when assessing on the standard basis whether (i) costs proportionately and reasonably incurred; or (ii) were proportionate and reasonable in amount. If assessing on an indemnity basis whether: (i) unreasonably incurred; or (ii) unreasonable in amount. Other factors include conduct of the parties, before, and during proceedings; amount of money or value of the property involved etc.

CPR 58.6 GENERAL RULE: SUMMARY ASSESSMENT GAME CHANGER 1 Summary assessment of costs the new normal The Judge will summarily assess the costs:- (1) Immediately application or so soon as practicable after the disposition; after the hearing of the (2) Immediately after the delivery of judgment after conducting the trial of any matter or so soon as practicable thereafter.

CPR 58.6(3) DETAILED ASSESSMENT (WITH OR WITHOUT DIRECTIONS TO REGISTRAR) THE EXCEPTION GAME CHANGER 2 The Judge instead of summarily assessing costs under paras (1) or (2) may direct that the whole or any part of the costs payable shall be subject to detailed assessment and he may when making such direction indicate which particular matter the Registrar may or shall take into account or exclude in relation to such detailed assessment.

CPR 58.8 TIME FOR COMPLYING WITH AN ORDER FOR COSTS GAME CHANGER 3 Party must comply with an order for the payment of costs within 21 days of- (a) The date of the judgment or order if it states the amount of those costs. (b) If the amount of those cots (or part of them) is decided later in accordance with this Section, the date of the certificate which states the amount; or (c) In either case, such later date as the court may specify.

ORDER 59 RULE 4 STAGE OF PROCEEDINGS AT WHICH COSTS TO BE DEALT WITH AS IS Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings and any order of the court for the payment of any costs may if the court thinks fit require notwithstanding the proceedings have not been concluded them paid forthwith

CPR 58.9 FAILURE TO COMPLY TO PAY COSTS ORDERED DURING PROCEEDINGS TO STAY OR TO STRIKE? GAME CHANGER 4 IF Plaintiff fails to pay ordered costs when due - the court may stay or strike out the claim or any defence to counterclaim proceedings or to make such other order as it thinks fit. or to third party IF Defendant fails to pay ordered costs when due - the court may strike out the defence or any counterclaim or third party proceedings or make such other order as it thinks fit.

CPR 58.10 SPECIAL SITUATIONS Subject to exceptions where the court makes an order which does not mention cost the general rule is that no party is entitled to costs but this does not affect any entitlement of a party to recover costs out of a fund held by that party as trustee or personal representative, or pursuant to any lease, mortgage or other security

CPR 58.11 COSTS-ONLY PROCEEDINGS GAME CHANGER 5 Provision dealing with the procedure to be followed where: (a) the parties to a dispute have reached an agreement on all issues (including which party is to pay the costs)which is made or confirmed in writing; but (b) they have failed to agree the amount of those costs; and (c)no proceedings have been started.

CPR 58.12 AMOUNT OF COSTS WHERE COSTS ARE PAYABLE PURSUANT TO A CONTRACT CPR 53.13 COSTS PAYABLE TO A PARTY OUT OF A FUND

CPR 58.14 ATTORNEYS DUTY TO NOTIFY CLIENT GAME CHANGER 6 Where: (a) the court makes a costs order against a legally represented party; and (b) the party is not present when the order is made, The party s attorney must notify his client in writing of the costs order no later than 7 days after the attorney receives notice of the order.

CPR 58.15 COURTS POWERS IN RELATION TO MISCONDUCT The Court has power under this provision to disallow all or part of the costs being assessed or to make an order for wasted costs

CPR 58.16 LIABILITY OF ATTORNEY FOR COSTS ATTORNEYS BEWARE!! WHERE AN ATTORNEY FOR A PARTY HAS CAUSED COSTS TO BE INCURRED WITHOUT REASONABLE CAUSE OR TO BE WASTED BY UNDUE DELAY, NEGLIGENCE OR OTHER DEFAULT, THE COURT MAY MAKE VARIOUS ORDERS. SIMILAR PROVISION EXISTS IN ORDER 59 RULE 8

CPR 58.17 PROVISION FOR FIXED COSTS GAME CHANGER 7 Chief Justice may by practice direction make provision for the circumstances in which costs may be recoverable without an order of the court and for the amount of such costs. Possible schedule of fixed costs for default judgment for example, where there is no court appearance Summarily assessed costs may also be addressed by the Chief Justice through the use of Practice Direction. Possible use of tariffs or other means to provide a range for costs in certain types of applications. Ensures certainty, greater transparency to parties, saves time and provides for consistency of costs amongst judicial officers