Master Brown’s ruling confirms that CPR 47.7 imposes a mandatory obligation to commence detailed assessment, not an option. While CPR 47.8 confers limited discretion, it cannot be exercised to convert an interim payment into a final order.
CPR 47.7 imposes a mandatory obligation on a receiving party to commence detailed assessment proceedings within three months of a costs order; the use of the word “must” is inconsistent with the step being optional. [31, 34, 39]
Where a receiving party fails to commence detailed assessment proceedings within the prescribed period, the paying party may apply under CPR 47.8(1) for an order to compel commencement; the court has a discretion to refuse such an order, but this is not a general discretion and requires a good reason, as the provision’s purpose is to enforce the obligation and bring finality. [42, 44, 46]
An order for a payment on account of costs is made on the assumption that the receiving party will progress the claim for costs to detailed assessment or agreement; the interim nature of the payment generally necessitates a subsequent final determination of the costs payable. [47, 48]
The self-contained scheme in CPR Part 47 for dealing with delay in commencing detailed assessment, with prescribed sanctions such as the disallowance of interest, means that considerations of abuse of process have a limited role; mere delay, without more, will not ordinarily justify refusing an application to compel assessment. [66, 70, 82]
In considering whether to compel detailed assessment after a long delay, the court will examine whether a fair assessment remains possible, focusing on the availability of documentary evidence such as invoices and attendance notes rather than witness recollection; the burden and cost of preparation for the receiving party are factors but are not ordinarily decisive. [58, 60, 70]
