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17.12 Provisional summary assessments
In cases where the court considers a summary assessment appropriate but wishes to
provide a safeguard against any possible injustice or inconsistency resulting from its
assessment, a procedure ought to exist enabling it to make a provisional summary
assessment which requires prompt payment of the sum assessed but nevertheless
preserves for either party the right, at the end of the proceedings, to insist on a taxation
of the costs of the hearing where the provisional summary assessment was made, with
a view to adjusting the quantum of the sum assessed.
If, at such taxation, the party seeking the taxation should succeed in having the sum
assessed adjusted in his favour (either, by having to pay less if he is the paying party,
or being awarded a higher amount, if the receiving party) he should be entitled to have
the summary assessment and consequent payment adjusted accordingly. However, if
he fails to achieve a favourable adjustment or if the adjustment is not significant so
that the costs of the full taxation are disproportionate to the benefits gained, a special
order as to the costs of the full taxation and any other order appropriate in the
circumstances should be made against him.
It is likely that sanctioned offers to be made in respect of the costs of taxation as
recommended in this Final Report
would play a large role in this context, so that
taxations after a provisional summary assessment are likely to be rare and likely to
occur only where the affected party considers the provisional summary assessment
seriously wrong, and not made good by the sanctioned offer.
Notes
See Section 27.
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