The Stationery Office has now published the much-heralded tenth update to the Civil Procedure Rules (CPR), to come into effect on Monday, 10 January.

Most of t he amendments relate to the costs practice directions; but first, one or two miscellaneous matters.Re-listing of applicationsA paragraph 12.2 has been added to PD23: when the court has heard an application in the absence of one party, then the court's power to re-list the application (where, for instance, a valid explanation for that non-attendance comes to light) is in addition to any other powers of the court such as to set aside, vary, discharge or suspend the original order.Rule 23.11 mistakenly could have been read as suggesting that all the court could do was to re-list.

So if a solicitor is absent from a hearing after failing to make a diary note, and as a result there is a judgment against the client, that solicitor should write immediately to the court explaining what has happened, making it clear it is his or her fault (thus giving a broad hint that he or she accepts the need to pay the costs thrown away) and asking the court both to stay any enforcement of the judgment and to re-list the case for hearing.Admiralty and MercantileThere is a minor amendment to the preamble to the Mercantile Court and Business Lists PD49H to make it clear that the new Mercantile Court for Wales and Chester can sit anywhere on that circuit and not just at Cardiff.

As for Admiralty, there are amendments to forms ADM1 (Admiralty claim form in rem) and ADM15 (claim form in a limitation claim) which no doubt will be picked up by the specialists.And so to costs .

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.One or two of the amendments correct earlier typographical errors or make amendments of such minor significance that they need not be laboured further here.

They relate to PD43 paragraphs 1.3 and 2.16, PD44 para 4.9(1) and (3), PD47 para 4.5, PD47 paragraphs 6.5 and 8.13 and PD48 paragraphs 2.17 and 2.25.The form of the bill of costsThere is much criticism of the new form of bill.

It does not easily enable the reader to ascertain the overall profit costs claimed, and it can be almost impossible to use when the assessment involves a mixture of party-and-party and legal aid funding.

PD43 paragraphs 1.7 and 2.10 have now both been amended to say that the use of the model form of bill is not compulsory, but is encouraged.

Any departure from the model form should be explained.

Will this mean a return to the old, familiar, six-column bill? Only time will tell.Another complaint with the new model form of bill is the frequent resort to schedules.

As previously drafted, PD43 para 2.11 stated that if the attendances and communications of a non-routine nature were more than five in number, then only the total should be shown in the bill and the detail should be left for a schedule.

For five, now read 20.Everyone is familiar with the need to divide a bill of costs into various sections, for example, costs claimed against the Legal Aid Board, pre-legal aid costs and so on.

A minor amendment to PD43 para 2.2(3) adds the need to distinguish the costs claimed against another party after legal aid was granted.The legal executiveThis term has been much abused.

The only fee-earners strictly speaking permitted to call themselves legal executives are Fellows of the Institute of Legal Executives.

Student members of the institute and other clerks are not entitled to this appellation.

An amendment to PD43 para 2.4 spells out in some detail that in future the use of the words 'legal executive' must be restricted to fellows; if the fee-earner has equivalent experience but is not a fellow, then the bill must make that clear.

Clerks without the experience of legal executives will normally b e treated as being the equivalent of trainee solicitors and paralegals.All of this has considerable significance both in the office and at court; if an experienced member of your staff has worked on the file, then that should clearly be recorded on it.

If a clerk of equivalent experience to a fellow attends court, then that should be made clear to the usher so that the order reflects the reality.

Spread the word around the office.Travelling timeEveryone is familiar with PD43 para 2.15(3): local travel expenses (local normally being taken as a radius of ten miles from the court) are not allowed on an assessment.

Additionally, the paragraph will now also say that where travel and waiting time is claimed, this should be allowed at the rate agreed with the client unless this is more than the hourly rate on the assessment.

So, solicitors have agreements with clients that they will pay a composite rate for all work undertaken and all time spent on the case, travelling time need no longer be claimed at what used to be the basic hourly rate without mark-up.

Subject to the general principles of assessment, if the composite rate claimed is acceptable to the costs judge, then the amounts claimed for travel and waiting should be allowed.Estimates of costsAt the moment, when dealing with a case outside the financial scope of the small claims track, the legal representative must file a costs estimate when filing either an allocation or listing questionnaire.

A copy has to be served on the other party as well.

PD43 para 4.5 now places an additional responsibility on the fee-earner to send a copy of those estimates to the client as well.This is really quite important.

In the Supreme Court Costs Office there is a legal aid case at the moment where the assisted person is relying on the old Law Society practice rule 15 and the written professional standards about costs information which applied until the amendment last September.

She argues that a material breach of the standards amounts to an improper or unreasonable act by the solicitor and therefore costs incurred as a result of it are wasted costs within reg 109(3).

Such wasted costs can either be reduced or even disallowed - in full - on assessment.There is also the decision of Jacob J.

in Mars UK Ltd v Teknowledge Ltd (11.6.99) where he held that for one party to run up unforseeably large bills without warning the other side was a matter to be taken into account in a detailed assessment as part of the manner in which a party had pursued or defended his case under CPR r.44.3(5).

The effect, again, is to render properly incurred costs irrecoverable.However, it is worthwhile stressing that the requirement to file and serve costs estimates has never applied to small claims.

In many such cases solicitors are submitting unnecessary costs estimates.

There is just no point in view of the general no-costs provisions of CPR r.27.14.But one further amendment to PD43 para 4.5 will at least ease the burden of work slightly.

No longer will it be necessary when filing a costs estimate at the listing questionnaire stage to distinguish between costs already incurred and those to be incurred if the case goes to trial.

PD43 para 4.5(3) has gone.Claimant's offer under part 36One of the more serious concerns about the rules has been about the effect on a case if a claimant fails at trial to beat his or her own part 36 offer.

Should he or she be penalised in costs? The courts are, after all, required by CPR r.44.3 (4)(c) to take any part 36 offer into account when deciding what, if any, order to m ake about costs.The problem, as was soon appreciated, was that if a claimant were to be penalised for having failed to beat his or her own part 36 offer, then he or she would be best advised not to make any part 36 offer at all.

But that would run entirely contrary to the spirit behind part 36, which has been one of the most successful of Lord Woolf's reforms.PD44 now contains a new paragraph 2.4 making it quite clear that in deciding what costs order to make, a failure by a claimant to beat his own offer will not in itself lead to a reduction in the costs awarded to the claimant under rule 44.

That does not mean that a claimant necessarily gets all of his costs, but that this one circumstance alone will not justify a reduction in the costs recovered.Summary assessmentPD44 para 4.4(1)(b) has been tidied up so that it now says what it was always intended to say.

As is generally known, there is a summary assessment of costs at the end of every fast track trial and at the end of every interim hearing lasting less than a day.

The PD now spells out that, if the interim hearing disposes of the claim, the court may go on to assess the costs of the whole claim.

Whether the court can actually do so will to a very large extent depend on whether the successful party had had the foresight to prepare a schedule of costs.

Time constraints, or the degree of disagreement on the level of costs, are also factors militating against a summary assessment of the entire costs of the claim.A minor amendment of significance for in-house solicitors: PD44 para 4.5(3) is amended to say that where the litigant is represented by a solicitor in his employment then the costs schedule need not include an indemnity certificate at the end of form 1.Agreed costs ordersNo one wants to stop the parties agreeing not just who should pay the costs, but also how much.

That is why PD44 para 4.10 used to say that where the amount of costs was agreed, there was no need to lodge a costs schedule.A much longer one has now replaced that paragraph.

PD44 para 4.10 now starts off with a ringing endorsement of the principle that the courts will not endorse disproportionate and unreasonable costs.

Accordingly:'(a) when the amount of the costs to be paid has been agreed, the court will make this clear by saying that the order is by consent;(b) if the judge is to make an order which is not by consent, the judge will, so far as possible, ensure that the final figure is not disproportionate and/or unreasonable having regard to part 1 of the CPR.

The judge will retain this responsibility notwithstanding the absence of challenge to individual items in the make-up of the figure sought.

The fact that the paying party is not disputing the amount of costs can however be taken as some indication that the amount is proportionate and reasonable.

The judge will therefore intervene only if satisfied that the costs are so disproportionate that it is right to do so.'What does all that mean? Simply this.

If an application is settled and a draft order is submitted to the court, but the agreed figure for costs hits the judge between the eyes as being far too high then do not expect the order to be approved.

The order will come back to you for clarification on the costs.Venue for detailed assessmentsAssessments following appeals from the PRFD or from District Registries or county courts in family proceedings will after 10 January go to the PRFD.

So says a new PD47 para 1.4(3).Option reply in detailed assessmentsMany practitioners have already been lodging replies to the detaile d points of dispute from paying parties.

PD47 para 4.1 has now been amplified to clarify that a reply can either be a separate document or written comments added to the points of dispute.

Either way, the receiving party or his solicitor must sign the reply.Legal aid assessmentsPD47 para 6 sets out what must be lodged when the court is to conduct a legal aid assessment.

In county courts and district registries, this has meant vast piles of correspondence files being lodged which are not even opened by the district judge when he or she conducts the assessment.

To alleviate the problem, in county courts and district registries there will be no need in future to lodge the instructions and briefs to counsel, reports and - most importantly - the correspondence files, unless the district judge asks for them.

However, it is still necessary to lodge the bill, the document giving the right to the assessment, all orders relating to the costs to be assessed, vouchers for the disbursements, the legal aid certificates (as well as amendments, discharge, etc) and all the regulatory certificates required these days.

This point needs to be stressed: some commentators on the latest update may have given the erroneous impression that no supporting papers at all need be lodged.

And bear in mind that only the county courts and district registries are affected by this change.After the legal aid assessment, it is for the solicitor to complete the bill and the legal aid assessment certificate, form 15.

Everyone did that anyway, but amendments to PD47 para 6.9 now make that clear.

A new PD47 para 9.7 imposes the same obligation when there is a legal aid schedule attached to a party and party bill.Offers to settle detailed assessment proceedingsPD47 para 7.5 now makes it clear that an offer to settle an assessment should say whether it is intended to be inclusive of the costs of preparing the bill, interest and VAT.

If the offer is silent, then all these items are deemed to be included within the offer.And finally, appeals from assessmentsThe first stage of an appeal from a detailed assessment is to ask for written reasons for the decision the costs officer reached.

PD47 para 8.1 has been amplified to say that a copy of the request for written reasons must at the same time be served on all other parties to the detailed assessment hearing.

If that is not done, the party who is content with the assessment has no idea the other party is contemplating an appeal.Once the court has produced the written reasons, then the court's permission to appeal has to be obtained.

PD47 para 8.10 now says that the request for permission should as a general rule be made to the judge whose decision is under appeal; where that judge is not available or is unable to deal with the request for permission, then the request may be made direct to the appellate court.