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16.12As COPR r159 makes clear, the court can depart from rules set out above (rules 156–157) if the circumstances so justify. Rule 159 provides that:
(1)The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including–
(a)the conduct of the parties;
(b)whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c)the role of any public body involved in the proceedings.
(2)The conduct of the parties includes–
(a)conduct before, as well as during, the proceedings;
(b)whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c)the manner in which a party has made or responded to an application or a particular issue; and
(d)whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.
(3)Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.
16.13It will be seen that the court retains a broad discretion to award costs and to take into account the parties’ behaviour before and during the proceedings. Given the pre-issue obligations imposed upon potential parties to welfare proceedings under the Case Management Pilot (see further chapter 10), it is likely that greater focus is going to be placed in due course upon the conduct of parties before litigation concerning P’s welfare is started.
16.14COPR r4 (COPR Pr1.4 where the Case Management Pilot applies) imposes a duty on the parties to help the court to further the overriding objective, and sets out a non-exhaustive list of expectations, considered at paras 10.7 onwards. These include, amongst others, full and frank disclosure
1COPR r4(2)(d)/Pr1.4(2)(f). and co-operation in all aspects of the proceedings, including the preparation of bundles.
2COPR r4(2)(e)/Pr1.4(2)(g). The expectations upon parties in cases under the Case Management Pilot are more stringent, but it is prudent even in cases outside the Pilot to proceed on the basis that the court will hold parties to the higher standards of the Pilot. The Case Management Pilot also introduces duties upon legal representatives
3COPR Pr1.5. and also upon unrepresented parties,
4COPR Pr1.6. both discussed in chapter 10.
16.15The following warning was added in 2015 to COPR r4
5COPR r4(3)/COPR Pr1.4(3) where the Pilot applies. and is clearly intended to focus the minds of parties and their advisers on the importance of compliance:
If the court determines that any party has failed without reasonable excuse to satisfy the requirements of this rule, it may, under rule 159 depart from the general rule about costs in so far as they apply to that party.
16.16It is also the experience of the authors that with more hearings taking place in the regions local judges are more willing to exercise their powers to undertake a summary assessment of costs. Advisers need to be alert to these issues which should be drawn to clients’ attention in the appropriate client care letter and/or terms and conditions.