Civil Procedure Rule 44.1 (CPR 44.1) is a starting provision within the Civil Procedure Rules Part 44, that governs the assessment and recovery of costs in civil litigation. It provides the foundation for Parts 44 to 47, setting out the definitions, scope, and procedures relevant to costs.  Though CPR 44.1 itself relates to specific definitions

The rules within CPR 44 to 47 set out the procedure upon which costs are to be challenged by a Paying Party, and assessed by the Court, and sets out the various factors as to proportionality (CPR 44.3) and reasonableness (CPR 44.4)to be taken into account. The Rules also ensure that costs are handled in a fair and consistent way, giving both parties clarity about their rights and obligations. It forms the basis for the procedures used by the courts to manage costs efficiently and transparently.

CPR 44.1 itself does not set out procedure, but rather the definitions to be taken into account for the purposes of the Rules, and states the following:

“44.1

(1) In Parts 44 to 47, unless the context otherwise requires –

‘authorised court officer’ means any officer of –

(i) the County Court;

(ii) a district registry;

(iii) the Family Court;

(iiia) the High Court; or

(iv) the Costs Office,

whom the Lord Chancellor has authorised to assess costs;

‘conditional fee agreement’ means an agreement enforceable under section 58 of the Courts and Legal Services Act 1990¹;

‘costs’ includes fees, charges, disbursements, expenses, remuneration, reimbursement allowed to a litigant in person under rule 46.5 and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track;

‘costs judge’ means a taxing master of the Senior Courts;

‘Costs Office’ means the Senior Courts Costs Office;

‘costs officer’ means –

(i) a costs judge;

(ii) a District Judge; or

(iii) an authorised court officer;

‘detailed assessment’ means the procedure by which the amount of costs is decided by a costs officer in accordance with Part 47;

‘the Director (legal aid)’ means the person designated as the Director of Legal Aid Casework pursuant to section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012², or a person entitled to exercise the functions of the Director;

‘fixed costs’ means costs, the amounts of which are fixed by these Rules;

‘free of charge’ has the same meaning as in section 194(10) of the 2007 Act;

‘fund’ includes any estate or property held for the benefit of any person or class of person and any fund to which a trustee or personal representative is entitled in that capacity;

‘HMRC’ means HM Revenue and Customs;

‘legal aid’ means civil legal services made available under arrangements made for the purposes of Part 1of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

‘paying party’ means a party liable to pay costs;

‘the prescribed charity’ has the same meaning as in section 194(8) of the 2007 Act;

‘pro bono representation’ means legal representation provided free of charge;

‘receiving party’ means a party entitled to be paid costs;

‘summary assessment’ means the procedure whereby costs are assessed by the judge who has heard the case or application;

‘VAT’ means Value Added Tax;

‘the 2007 Act’ means the Legal Services Act 2007³.

(‘Legal representative’ has the meaning given in rule 2.3).

(2) The costs to which Parts 44 to 47 apply include –

(a) the following costs where those costs may be assessed by the court –

(i) costs of proceedings before an arbitrator or umpire;

(ii) costs of proceedings before a tribunal or other statutory body; and

(iii) costs payable by a client to their legal representative; and

(b) costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.

(3) Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under Parts 44 to 47 notwithstanding that the client is liable to pay the legal representative’s fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.”

The importance of CPR 44.1

Civil Procedure Rule 44.1 (CPR 44.1) is a key provision within the Civil Procedure Rules that establishes the framework for the assessment and recovery of costs in civil litigation. At its core, CPR 44.1 is about clarity, fairness, and consistency. It provides the legal basis for ensuring that costs are handled in a way that is transparent and equitable to all parties involved.

By setting out key definitions and principles within CPR 44.1(1), the rule allows courts and legal professionals to navigate complex cost issues, whether they relate to solicitor fees, disbursements, or other recoverable expenses.

CPR 44.1(1) also identifies who can carry out cost assessments, including judges, costs officers, and authorised court officers, and explains the difference between procedures such as summary assessments – where costs are decided quickly by the judge who heard the case – and detailed assessments, which involve a more formal and thorough examination of costs.

Importantly, CPR 44.1 ensures that costs arising under different arrangements, such as conditional fee agreements (CFAs), remain recoverable, even when payment to the legal representative depends on the outcome of the case. This principle both claimants and defendants by providing a clear mechanism for recovering costs in a wide variety of civil proceedings.

The Court’s Discretion under CPR 44.1

CPR 44.1 gives the court the flexibility to decide on costs in a way that reflects the circumstances of each case. While the general rule pursuant to CPR 44.2(2)(a) is that the losing party pays the winning party’s costs, the court can use its discretion to make different orders if it considers this to be fair.

When exercising its discretion as to costs, the court may take into account factors such as the conduct of the parties, including whether a party has acted unreasonably, caused delays, or failed to comply with court rules. Offers made during proceedings, such as Part 36 offers, can also influence how the court awards costs. Ultimately, the court seeks to ensure that costs are handled fairly and proportionately, allowing it to limit, reduce, or apportion costs where appropriate.

Types of cost assessments under CPR 44.1

CPR 44.1 provides the framework for procedures for assessing costs in civil proceedings, which can be done through two main methods: summary assessment and detailed assessment. Understanding the differences between these approaches is important for both parties involved in litigation.

• Summary assessment – This is a quicker method of assessment whereby the judge who has heard the case or application makes an immediate assessment of costs. It is often used for straightforward cases or applications where the costs are relatively small and do not require extensive scrutiny, and takes place most often at the end of hearings, though can be done on a separate date if the Court deems this appropriate.
• Detailed assessment of costs– For more complex or higher-value cases, costs may be addressed in detail by a costs officer or authorised court officer. This process involves a thorough examination of each item of cost, including legal fees, disbursements, and other recoverable expenses. Parties may provide supporting evidence, and assessment ensures that all costs are fair, reasonable, and in line with the rules.  The detailed assessment process follows the Notice of Commencement procedure for service of a formal Bill of Costs, exchange of Points of Dispute and Replies, and can result in an attended hearing over multiple days whereby costs are scrutinised and determined on a line by line basis.

By providing these two methods, CPR 44.1 ensures that costs recovery is both efficient and equitable, balancing the need for speed in simple cases with the requirement for accuracy and fairness in more complex matters.

Recoverable costs under CPR 44.1

CPR 44.1 defines what types of costs can be recovered in civil proceedings, providing clarity for both paying and receiving parties. The rule covers a wide range of costs, ensuring that the party entitled to costs can recover expenses reasonably incurred during litigation.

Some of the main types of recoverable costs include:

• Legal fees: Fees charged by solicitors, barristers, or other legal representatives for work carried out on the case.
• Disbursements: Expenses incurred in connection with the case, such as court fees, expert reports, and travel costs.
• Conditional Fee Agreement costs: Costs recoverable where a case is conducted under a “no win no” arrangement, ensuring that these costs are considered under the rules.
• Tribunal or statutory body costs: Costs arising from proceedings before arbitrators, tribunals, or other statutory bodies, where the court jurisdiction to assess them.
• Contractual costs: Costs payable by one party to another under the terms of a contract, addressed in more detail in CPR 44.5, where the court orders an assessment.

Fixed costs and assessed costs under CPR 44.1

CPR 44.1 distinguishes between fixed costs and costs that require assessment, providing a clear framework for cost recovery in civil litigation.

Fixed costs are predetermined amounts set by the Civil Procedure Rules for specific types of claims or stages of proceedings in CPR 45. They provide certainty for parties and the court in straightforward cases, such as low-value claims or standard procedural steps, by removing the need for detailed scrutiny. Fixed costs reduce administrative burdens and allow parties to plan financially with confidence, knowing the amount recoverable is defined in advance.

Where costs are not fixed, the amount of costs payable must be determined by the court. This is done on either a standard basis or an indemnity basis, depending on the circumstances of the case and the conduct of the parties. The basis of assessment guides the court in evaluating which costs are reasonable and proportionate to the work carried out.

• On the standard basis, the court determines that any doubt about the reasonableness or necessity of a cost is resolved in favour of the paying party. This approach ensures that costs are fair and proportionate, preventing excessive or unjustified claims.
• On the indemnity basis, the court will allow costs unless they are clearly unreasonable or improper. This higher threshold is often applied in cases where a party has acted improperly, unreasonably, or in breach of court rules. The indemnity basis is designed to compensate the receiving party fully for the costs incurred, reflecting the seriousness of the paying party’s conduct.

By distinguishing between fixed costs and assessed costs, CPR 44.1 provides a flexible yet structured approach to cost recovery. Fixed costs offer predictability, while the assessment process—whether standard or indemnity—ensures that complex, high-value, or contentious cases are reviewed thoroughly to achieve a fair outcome for both parties.

Qualified One-Way Costs Shifting (QOCS)

Certain cases, particularly personal injury claims, may be subject to Qualified One-Way Shifting (QOCS). QOCS is designed to protect claimants from the risk of paying the defendant’s costs if their claim is unsuccessful, while still allowing defendants to recover costs in limited circumstances where the claimant has acted unreasonably.

Under QOCS, the claimant is generally not liable for the defendant’s costs if the claim fails. This protection encourages individuals to pursue legitimate claims without the fear of crippling financial exposure. However, the rule is not absolute. The court retains discretion to order the claimant to pay costs in situations where the claimant has behaved improperly, such as making frivolous or vexatious claims, failing to comply with court rules, or engaging in unreasonable conduct during litigation.

How can ARC Costs assist?

At ARC Costs, we are an experienced and independent team of specialised Costs Draftsmen and Costs Lawyers. As independent experts, we can assist either Paying or Receiving parties in resolving costs disputes.

For Receiving Parties we are adept at preparing Costs Budgets and Bill of Costs, as well as providing legal costs negotiations services and preparing Points of Reply. Ultimately, we can ensure your legal costs are recovered to the maximum degree possible, and we will always advise on appropriate settlement parameters from the outset for you to determine to what degree you can expect recovery of your legal costs.

Similarly, if instructed by the Paying Party, we are experts at settling legal points of concern within Points of Dispute, and conducting negotiations to reduce your exposure to legal costs.

If you would like more information on any of our services or wish to speak to a member of our expert costs team about your legal costs, then please do not hesitate to contact us. Please call one of our independent experts at 01204 397302, or email one of our costs experts direct on info@arccosts.co.uk.

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