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The introduction of provisional summary assessments requires an addition to the
RHC. Presently, under O 62 r 9A, the court has the power to make an interim award
of costs payable forthwith, but the terms of this rule are not designed to serve the
envisaged purpose of a provisional summary assessment :-
(a)
The power under O 62 r 9A is only exercisable where the application or
resistance to the application is frivolous or vexatious or for some other reason
makes the order just in the circumstances. The power to make a provisional
summary assessment ought to cover all such cases, but should be wider and
more general, enabling the court to make a provisional summary assessment
where appropriate, for instance, where this is likely to save costs.
(b)
An interim order is made under O 62 r 9A on the assumption that there will be a
full taxation at the end. A provisional summary assessment should be made on
the basis that a taxation should not follow unless a significant difference of
award is thought likely to result, with sanctions prescribed to discourage
challenges unless they are likely to yield proportionate benefits to the
challenger.
Recommendation 92: Judges and masters should be empowered to make
provisional summary assessments of costs, whereby the assessed sum must
promptly be paid but allowing either party, at the end of the main proceedings,
to insist on a taxation of the relevant costs with a view to adjusting the quantum
of the payment made, but with the party who insists on such a taxation being at
risk as to a special order for the costs of the taxation and other possible
sanctions in the event that the taxation does not result in a proportionate benefit
to him.
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