Ask the judges

The Gazette's panel of district judges answers more of your questions on civil practice and procedure

Q Does the court have power, on entering judgment in default of acknowledgment of service or defence, to award the claimant assessed rather than fixed costs?A Theoretically, yes but we would not expect such an award to come easy (see Civil Procedure Rules 1998 (CPR), rule 45(1) - 'unless the court orders otherwise' which it can still do even if the claimant has sought the prescribed fixed solicitor's costs on the claim form and the defendant has settled the claim and those costs on receipt of the claim form - rule 45(3)).Therefore, departing from fixed costs would require an order, for which the claimant would have to apply.

No doubt the court would require an application to be supported by evidence demonstrating the unusual nature of the case and to be made on notice to the defendant.

In the event of an order being made which provided for other than fixed costs on an application which had not been served on the defendant, he would be entitled to apply to the court to set aside or vary.

Q Can fees incurred by a judgment creditor on enforcement (for example, on abortive execution) be included in the 'debt' for which a subsequent charging order may issue?A The general rule is that costs are at the discretion of the court and, therefore, an order for costs must be made against a party before that party can become liable for them.

The CPR contain exceptions (for example, on discontinuance of a claim or on acceptance of a payment into court) but there is none which relates to the costs of abortive enforcement steps.

Provisions in the old County Court Rules which did allow for abortive execution costs to be added to the judgment debt have not been replicated in the CPR.

Some court forms, inherited from the old prescribed forms, require the amount of abortive execution costs to be stated - although this is due not to an ability to recover them without an order, but a failure to update the forms in this connection.

Other forms of enforcement process require an application to the court and the resultant order will deal with the costs.

It would be possible, but unusual, for the judge to add them to the judgment debt if the application failed.

Q The current edition of the White Book suggests that claims for possession under the Mobile Homes Act 1983 should be brought under CPR, part 8 and not part 55.

I cannot understand why.

The claim is for possession of the pitch (that is to say, land).

What does the panel say?A Until 15 October 2001, claims under the 1983 Act were governed by schedule 2 to the CPR, County Court Rules, order 49, rule 13 and Practice Direction 8B.

Upon that rule and the reference to it in the practice direction being revoked, they were not replaced.

The Act no longer has any special provision in the CPR or practice directions.

Therefore, the general provisions apply.

If the claim is for possession of the pitch, it should be made under part 55.

As for other claims under the Act, part 8 will be appropriate where there is no substantial dispute of fact and otherwise the part 7 procedure.

Q Can a claim be brought or defended by an attorney under a power which purports to give the necessary authority on behalf of the donor and in the donor's name? If so, can the attorney sign statements of truth?A While the position is not free from doubt, the panel takes the view that the attorney can do so, although the court may well call for the production of a certified copy of the power.

It would be good practice for the title to the claim to show the donor claiming or defending 'by his attorney AB'.

A power which authorises the attorney to prosecute or defend a claim would impliedly extend the attorney's authority to signing statements of truth.

But the attorney should be careful as CPR, rule 32.14 says that proceedings for contempt may be brought against a person if he makes a false statement in a document verified by a statement of truth without an honest belief in its truth.

That 'person' would be the attorney.

Q Suppose the receiving party under a costs order has paid a cancellation fee to his medical consultant after late settlement in accordance with a contractual arrangement between the party and the consultant.

On detailed assessment, to what extent, if at all, is it relevant that the consultant managed to refill his diary for the day set aside to attend court, and can the court investigate whether he has ended up financially better off by collecting the cancellation fee than if he had attended court?A The court can certainly review whether the receiving party incurred the disbursement reasonably.

This would involve consideration of the reasonableness of the amount of the cancellation fee - in particular whether it was a genuine estimate of the consultant's loss and in this connection the court might be assisted in establishing how in the event the consultant did spend the day - and whether the receiving party had any option but to accept the consultant's terms of engagement.

Did they provide for a graduated cancellation fee dependent on the length of the notice of cancellation and, if not, why not? Could instructions not have been given to another consultant whose cancellation demands were more favourable to the receiving party? Of course, the fact that the consultant ended up utilising the day in a remunerative way does not mean that he did not suffer a loss: he may simply have brought appointments forward with the result that he subsequently had some unremunerative time on his hands.

Q CPR, practice direction 16, paragraph 4.3 requires a claimant in a personal injury claim to attach to or serve with his particulars of claim a medical report if he is relying on a medical practitioner's evidence.

Can the court compel the claimant to produce a medical report in this way if the claimant says he will not rely on the evidence of a medical practitioner but simply on his own evidence as to his injuries and pain and suffering?A We cannot improve on the wording of the practice direction.

It means no more and no less than it says.

The claimant cannot be compelled to produce a report if he does not intend to rely on one.

However, if the claimant did see a doctor, the defendant would almost certainly seek and, if not given voluntarily, obtain from the court an order for disclosure of the claimant's relevant medical records.

Questions may be e-mailed to: kim.davies@lawsociety.org.uk.The answers are the view of our panel and not binding on any court.

The panel is unable to enter into correspondence.