C1PART 3THE COURT'S CASE F1AND COSTS MANAGEMENT POWERS
Pt. 3 applied (with modifications) (1.10.2007) by The Court of Protection Rules 2007 (S.I. 2007/1744), rules 1, 184(a)
F2SECTION IIICosts Capping
Pt. 3 Sections 2, 3 inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(h) (with rule 22)
Costs capping orders – General3.19
F31
For the purposes of this Section—
a
‘costs capping order’ means an order limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made; and
b
‘future costs’ means costs incurred in respect of work done after the date of the costs capping order but excluding the amount of any additional liability.
2
This Section does not apply to judicial review costs capping orders under Part 4 of the Criminal Justice and Courts Act 2015 or to protective costs orders.
(Rules 46.16 to 46.19 make provision for judicial review costs capping orders under Part 4 of the Criminal Justice and Courts Act 2015.)
F43
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4
A costs capping order may be in respect of –
a
the whole litigation; or
b
any issues which are ordered to be tried separately.
5
The court may at any stage of proceedings make a costs capping order against all or any of the parties, if—
a
it is in the interests of justice to do so;
b
there is a substantial risk that without such an order costs will be disproportionately incurred; and
c
it is not satisfied that the risk in subparagraph (b) can be adequately controlled by–
i
case management directions or orders made under this Part; and
ii
detailed assessment of costs.
6
In considering whether to exercise its discretion under this rule, the court will consider all the circumstances of the case, including—
a
whether there is a substantial imbalance between the financial position of the parties;
b
whether the costs of determining the amount of the cap are likely to be proportionate to the overall costs of the litigation;
c
the stage which the proceedings have reached; and
d
the costs which have been incurred to date and the future costs.
7
A costs capping order, once made, will limit the costs recoverable by the party subject to the order unless a party successfully applies to vary the order. No such variation will be made unless—
a
there has been a material and substantial change of circumstances since the date when the order was made; or
b
there is some other compelling reason why a variation should be made.
Application for a costs capping order3.20
1
An application for a costs capping order must be made on notice in accordance with Part 23.
2
The application notice must –
a
set out –
i
whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and
ii
why a costs capping order should be made; and
b
be accompanied by a budget setting out –
i
the costs (and disbursements) incurred by the applicant to date; and
ii
the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings.
3
The court may give directions for the determination of the application and such directions may –
a
direct any party to the proceedings –
i
to file a schedule of costs in the form set out in paragraph 3 of Practice Direction F53E – Costs capping;
ii
to file written submissions on all or any part of the issues arising;
b
fix the date and time estimate of the hearing of the application;
c
indicate whether the judge hearing the application will sit with an assessor at the hearing of the application; and
d
include any further directions as the court sees fit.
Application to vary a costs capping order3.21
An application to vary a costs capping order must be made by application notice pursuant to Part 23.
Words in Pt. 3 heading inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(a) (with rule 22)