The recovery and quantification of legal costs in civil litigation in England and Wales are governed by Part 47 of the Civil Procedure Rules (CPR) and supported by Practice Direction 47. CPR 47.11 specifically addresses the circumstances under which a default costs certificate can be issued.

Where costs are awarded and the parties cannot agree on the amount payable, the matter proceeds to detailed assessment under Part 47 of the Civil Procedure Rules (CPR). CPR 47.11 permits the issuance of a default costs certificate in certain situations.

A Default Costs Certificate allows the receiving party to recover the full amount claimed in the bill of costs where the paying party fails to respond within the time limits set out in the rules. CPR 47.11 sets out the procedural basis for obtaining this type of certificate.

What Is a Default Costs Certificate under CPR 47.11?

A Default Costs Certificate is a court-issued document that confirms the amount of costs payable by the paying party to the receiving party when they fail to serve Points of Dispute within the required 21 days. It effectively finalises the amount of costs without a detailed assessment hearing and is enforceable as an order of the court.

An Overview of CPR 47.11

CPR 47.11 governs the issue of default costs certificates and provides a clear, structured process for obtaining them.

Rule 47.11(1): Requesting a Default Costs Certificate

“Where the receiving party is permitted by rule 47.9 to obtain a default costs certificate, that party does so by filing a request in the relevant practice form.”

This provision states that the process for obtaining a Default Costs Certificate is initiated by the filing of a formal request. The receiving party must be entitled under CPR 47.9, which means that the paying party has not served Points of Dispute within 21 days of being served with the bill of costs.

The request must be submitted using Form N254, and must confirm that the procedural requirements have been met.

Rule 47.11(2): Inclusion of an Order to Pay

“A default costs certificate will include an order to pay the costs to which it relates.”

Once issued, the Default Costs Certificate functions as more than just an administrative record of the costs claimed. It includes a formal order to pay the sum claimed in the Notice of Commencement in full, plus the fixed costs attributable to obtaining the Certificate, giving it the same status as a judgment of the court. It can be enforced through standard enforcement mechanisms if payment is not made voluntarily.

This means the receiving party has access to remedies such as charging orders, third-party debt orders, or even insolvency proceedings against the paying party, depending on the amount involved and the circumstances.

Rule 47.11(3): Costs of Commencement

“Where a receiving party obtains a default costs certificate, the costs payable to that party for the commencement of detailed assessment proceedings will be the sum set out in Practice Direction 47.”

In addition to the costs detailed in the bill, the receiving party is entitled to recover an additional fixed amount representing the costs of commencing detailed assessment proceedings. This figure is set by Practice Direction 47, which supplements the main rules.

The fixed amount ensures consistency and predictability and compensates the receiving party for the costs incurred in preparing the bill and initiating the process.

As of the current Practice Direction 47 provisions, this fixed sum is modest but ensures that non-compliance by the paying party does not go unaddressed.

Rule 47.11(4): Charitable Notification Requirement

“A receiving party who obtains a default costs certificate in detailed assessment proceedings pursuant to an order under section 194(3) of the 2007 Act must send a copy of the default costs certificate to the prescribed charity.”

This provision applies in a specific category of cases where costs are awarded under Section 194(3) of the Legal Services Act 2007, which relates to pro bono representation.

Under this section, where a costs order is made in favour of a party who has received pro bono legal assistance, the costs do not go to the litigant but are instead paid to a prescribed charity (currently, the Access to Justice Foundation). CPR 47.11(4) requires that a copy of the Default Costs Certificate be sent to the charity.

Risks and Consequences for the Paying Party

The issuance of a Default Costs Certificate has serious implications for the paying party:

• The amount claimed becomes immediately enforceable, regardless of any dispute over reasonableness or proportionality.
• The paying party loses the opportunity to challenge individual items in the bill unless they successfully apply to set aside the certificate under CPR 47.12.
• Applications to set aside are discretionary and must be made promptly, with a credible explanation for the delay and a proposed draft of Points of Dispute.

Courts tend to take a strict approach where procedural deadlines are missed without good reason. This is in line with the overriding objective of dealing with cases justly and efficiently.

Varying and Setting Aside a Default Costs Certificate

Whilst a Default Costs Certificate issued under CPR 47.11 is binding and enforceable as a court order, CPR 47.12 provides the right to apply to vary or set aside the certificate.

CPR 47.12 states:

“A costs judge or district judge may set aside or vary a default costs certificate if he is satisfied that there is good reason to do so.”

This gives the court discretion to set aside or amend the certificate where the paying party can demonstrate a good reason why the detailed assessment proceedings should continue. The rule is intentionally broad to allow flexibility, but the threshold is not low. The court expects compliance with deadlines and will only intervene in exceptional or justified cases.

Typical circumstances where a paying party might seek to set aside a Default Costs Certificate include:

• Failure to serve Points of Dispute due to mistake or administrative error;
• Non-receipt of the copies of the bill of costs or supporting documents;
• Illness or incapacity of legal representatives during the response period;
• Genuine misunderstanding of deadlines, especially by litigants in person.

Crucially, the paying party must act promptly once aware of the certificate and provide evidence explaining the failure.  Generally the principles apply as to whether to set aside a Default Costs Certificate or not, follow the Denton Test and therefore the seriousness of any default, as well as whether it would be just to overturn the Default Costs Certificate, will be taken into account.

To apply to set aside or vary a Default Costs Certificate under CPR 47.12, the paying party must promptly file a Form N244 application, supported by evidence, such as a witness statement explaining the reasons for failing to serve Points of Dispute on time.

The application must include draft Points of Dispute to demonstrate a genuine intention to contest the bill. The application must be served on the receiving party, and the court may list a hearing or deal with the matter on paper. The court will only grant the application if it is satisfied that there is a good reason to do so.

How Can ARC Costs Assist with Regards to CPR 47.11?

The costs team at ARC Costs are highly experienced in the recovery of legal costs, and are independent experts that can assist Paying or Receiving Parties.

As a team we can assist in the enforcement of costs by drafting Bills of Costs and applying for Default Costs Certificates when the paying party has failed to serve their Points of Dispute on time.

We can also assist in the application for Interim/Final Costs Certificates, if required, as well as the challenging of a Default Costs Certificate if it has been obtained unreasonably.

If you require any free initial advice, or our assistance with regards to any aspect of costs, please email us at info@arccosts.co.uk, or contact us via the Contact Us page and one of the team will get in touch on the same working day.  You can also speak to one of our experts by phone, by calling 01204 397302.

We can also provide assistance with anything relating to your legal costs claim, whether it be preparing a Costs Budget, to preparing the Bill of Costs and negotiating recovery of your outstanding fees. Simply get in touch to find out more. 

Follow Us