Unless Order: Unless Orders in Relation to Costs

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What is an Unless Order?


Unless Orders are made by the Court and provide specific instructions which one party must follow to prevent sanctions, such as the striking out of a claim, from being applied.

Such an Order will usually stipulate the consequences that will apply if the party has not complied with the Unless Order instructions within a specified period of time. In the interests of justice, sanctions for failure to comply with the Order will be proportionate to the ordered instructions.


When are Unless Orders Used?


These types of Orders used in civil litigation, are made under CPR 3.1 and are also known as Hadkinson Orders as they were established in the case of Hadkinson v Hadkinson. They are not used very often; but, are used when there is no other method of ensuring that a party will comply with an Order and may be made when the party has failed to comply with a previous Order. In the case of Hadkinson, Lord Justice Denning stated the following:-

‘It is a strong thing for a court to refuse to hear a party to a cause, and it is only to be justified by great considerations of public policy. It is a step which a court will only take where the party itself impedes the course of justice and there is no other effective means of securing his compliance.’

If an Unless Order is not adhered to, it is likely the consequence will be for the claim or defence to be struck out, or failure to serve evidence may lead to such evidence not being able to be relied upon at any final hearing. Only an application for relief from sanctions under the Denton Test can remedy a failure to adhere to an Unless Order, though good reasons must be demonstrated to be successful in such an application.


Unless Orders and CPR 47


Under CPR 47.7, a Bill should be served within 3 months from the date of Judgment or acceptance of a Part 36 Offer. Under CPR 47.8, the Paying Party is entitled to apply for an Unless Order for service of a bill outside of the 3 month window. They are also entitled to disallow interest on costs.

1) Where the receiving party fails to commence detailed assessment proceedings within the period specified:

(a) in rule 47.7; or

(b) by any direction of the court,

the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify.

(2) On an application under paragraph (1), the court may direct that, unless the receiving party commences detailed assessment proceedings within the time specified by the court, all or part of the costs to which the receiving party would otherwise be entitled will be disallowed.

(3) If –

(a) the paying party has not made an application in accordance with paragraph (1); and

(b) the receiving party commences the proceedings later than the period specified in rule 47.7,

the court may disallow all or part of the interest otherwise payable to the receiving party under –

(i) section 17 of the Judgments Act 1838; or

(ii) section 74 of the County Courts Act 1984,

but will not impose any other sanction except in accordance with rule 44.11 (powers in relation to misconduct).


How Can ARC Cost Assist?


ARC Costs are a team of legal costs experts consisting of experienced Costs Draftsmen and Costs Lawyers. We regularly represent both paying and receiving parties in costs disputes, and we ensure that the best outcome is always achieved for our client.

As an independent party, we bring objectivity to any costs dispute we encounter, and we can handle all aspects of costs queries/disputes. Whether it be providing advice on your initial retainer/conditional fee agreement, settling a Costs Budget or Bill of Costs, conducting negotiations/Points of Dispute or providing advocacy services in relation to a CCMC or detailed assessment hearing, one of our adept team members will be available to facilitate the best outcome possible.

To contact one of the team, call 01204 397302 or send instructions to info@arccosts.co.uk.


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