Delayed payments

I was interested in the comments made by Judge Michael Cook on the costs system being the least successful part of the Civil Procedure Rules (see [2000] Gazette, 21 September, 4).

It is my experience that the costs procedure can be used by unsuccessful paying parties to delay the settlement of costs and thus penalise the receiving party.

The delays in obtaining detailed assessment hearings has also led to clients becoming mystified and dissatisfied with the rules that were heralded to speed up litigation and make it cheaper.

In some instances, it has taken longer to obtain adjudication of costs than it has taking a matter to trial.

Paying parties may attempt to argue that various costs are not incurred on a party and party basis, notwithstanding that in reality they were incurred because of the litigation.

Although the principle of party and party costs (and the fact that there will be unrecoverable costs) are explained to clients, they cannot understand why, having won, they should not have their costs paid in full.

No one is suggesting that wholly unnecessary costs should be recoverable but, at the same time, unsuccessful litigants are able to inflict hardship (and it appears some form of retribution) upon the receiving party by delaying settlement of cost liabilities and proceeding to detailed assessment hearings.

In some cases, the paying party raises as many points as possible which inevitably results in increased cost for the receiving party.

The costs of the hearing and the prior proceedings, again, tends to be another fighting ground for the paying party.

In my experience, inevitably, the result is costs on costs.

Delays and costs penalties, especially those outlined in the article, are unsatisfactory to many litigants.

Timothy Goodger, Elborne Mitchell Solicitors, London