The statement of costs must be filed at court and served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event not less than 24 hours before the time fixed for the hearing. For a fast track trial, the statement of costs must be served and filed not less than 2 days before the trial.

The costs will be assessed by the judge who has heard the case or application. The court will consider the costs in the same way that it would at a detailed assessment but will do so within a much shorter timeframe, which is generally 30 minutes. The parties should raise the same arguments as routinely seen within points of dispute and reply, including the indemnity principle, proportionality, hourly rates, amount of time spent, counsel’s fees and disbursements. The court will consider the factors set out at CPR 44.4(3) in deciding the amount of costs.

The failure by a party, without reasonable excuse, to file and serve a statement of costs on time will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.

The failure by the receiving party to file and serve a statement of costs may result in an adjournment or order for detailed assessment. The paying party could then seek its costs of the adjourned hearing if they had spent time preparing for a summary assessment. They may also argue that the receiving party should be liable for the costs of the detailed assessment proceedings.

Where a statement of costs is provided on the day of the hearing, MacDonald v Taree Holdings (2000) AII ER (D) 2204 provides that the court will take the failure into account but its reaction should be proportionate. If the only factor against awarding costs was merely the failure to serve a statement of costs without aggravating factors, a party should not be deprived of all their costs. However, if aggravating factors did arise then the receiving party may be deprived of all or a proportion of their costs.

CPR Practice Direction 51X provides for a pilot of a new statement of costs for summary assessment. The pilot scheme will operate from 1st April 2019 to 31st March 2021 and apply to all claims in which costs are to be summarily assessed, whenever they were commenced.

There are two new forms. The N260A applies when the costs have been incurred on an interim application, whereas the N260B applies when the costs have been incurred up to trial.

The new statements of costs are detailed electronic spreadsheets with information set out across various tabs, similar to the new electronic bills of costs (Precedent S). The new forms allow costs to be split into costs budget phases, which provides a greater level of transparency and allows the costs claimed to be compared against the costs budget.

The new statements of costs are likely to take longer to prepare given the additional detail they provide. However, utilising our experience in preparing statements of costs, we are able to prepare them expeditiously and with great accuracy.