First of all, we need to make one specific point. Bills in the Supreme Court are presented in Form H, which has become a central part of the wider litigation process.

As this style of presenting costs was introduced some little time ago, I’m hoping that readers are increasingly familiar with how this works. And, not surprisingly, my advice is to instruct an independent costs specialist. Indeed, the well-known Mitchell case contained salutary lessons for us all, in that the defendants sent their budget off to independent specialists; the claimant did not and their solicitors are then litigated with no real hope of recovering costs.

One golden rule applies when preparing the Bill of Costs – this must be done within three months of the date of the order. In observing this time limit, we need to note that this is a mandatory requirement, whereas in the other Courts, the only sanction is that, if you exceed the three-month limit, you lose accrued interest thereafter.

It should of course be noted that you can only obtain an extension if this is granted within the 3-month period. As a practical consideration, if you wish to make application outside of the 3-month period, any request needs to be made using Form 2. The Supreme Court will then consider all the circumstances listed at PD13 8.2, when arriving at a decision whether or not to permit the extension request.

Additionally, there are several other significant practice differences that it is necessary to take into account, when dealing with the Supreme Court. Firstly, all documents are sent to the Court itself, as well as to the other parties. In this regard, please note that it is possible to correspond by email with the Supreme Court Costs Clerks, who I have found to be very helpful and accommodating.

Secondly, practitioners need to note that there is no Notice of Commencement N252. In fact, the Points of Dispute (PODS) run from date of service, while the Bill and the Replies also need sending to the Supreme Court, as well as being served on all other parties. Moreover, if no PODS are served, the Court will provisionally assess the Bill at that stage.

At this stage, the parties should be aware that they can still amend PODS and PORS in the light of the provisional assessment hearing, where the case proceeds to oral hearing. Moreover, if either party remains unhappy with the outcome, post-oral hearing, that party can appeal for a review to be heard by a single Justice.

However, the parties must be aware that any application for review will only take into account a point of principle, and will not question the amount allowed at previous determination. In order to commence review, the application must be made within 14 days of the DA hearing. Any review must state detailed grounds for the objection.

Other differences in the Supreme Court can be summarised as follows:
There is no need to use a Form N258 to request a hearing. To do this, you need only ask the Supreme Court itself.
The Applicant needs to pay 2.5% of the Bill upon service.
If the case settles less than 21 days before hearing, the applicant party needs to pay the Court fee.

On another note, the agreed costs figures following hearing and assessment must be sent to Costs clerk no later than 1 month after the assessment. Both parties need to sign the form H to confirm that the figures referred to are agreed.

Broadly, the assessment of costs in the Supreme Court is governed by the SC Rules 2009. However, in circumstances where the Supreme Court Rules and Practice Directions do not cover a particular circumstance, CPR & PD 44-47 will be applied, albeit at the discretion of the Costs Officer.

Any DA will be heard by Costs Officers appointed by the President of the Court. One of these will be a Senior Costs Judge, or a Costs Judge appointed by Senior Costs Judge. Practice Direction 13 contains details of what is usually allowed in respect of Counsel’s fees, Solicitors hourly rates and costs of completing form H. In this regard, it should be noted that the Supreme Court takes a strong view of any disproportionate use of Counsel, and will usually only allow a single Counsel.
Finally, be aware that, if you are entering into a Conditional Fee Agreement or funding arrangement, there is a requirement to inform the Supreme Court as soon as possible.

Jessica Swannell
Costs Lawyer & Practice Manager
A&M Bacon Limited