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The Working Party accordingly recommends adoption of Proposal 60. However,
some thought will be required to harmonise the provisional taxation procedure with
sanctioned payments and offers in relation to pending taxations. The outline of a
possible approach may be as follows :-
(a)
A paying party may demand a taxation while making a sanctioned payment or
may meet with a sanctioned offer from the receiving party. If neither payment
nor offer is accepted, the matter proceeds to the taxing master who may decide
to conduct a provisional taxation.
(b)
The taxing master should not have information about the sanctioned payment or
offer when conducting the provisional taxation. In making his award, two
contingencies should be catered for, namely, (i) that one or other of the parties
may require an oral hearing; and (ii) that the order for the costs of the
provisional taxation may have to take into account a sanctioned payment or
offer.
(c)
Accordingly, the orders made on the provisional taxation, both as to the costs
awarded and the costs of the taxation itself, should be orders nisi. In relation to
the costs of the taxation, the taxing master's discretion is likely to turn at this
stage on the extent to which the taxation resulted in the receiving party's bill
being reduced and on other general discretionary considerations.
(d)
The parties should thereafter have the opportunity within a stated period, to seek
an oral hearing. If such a hearing is held, all questions of costs, including the
effect of any sanctioned payment or offer, can be dealt with at that hearing.
However if, after expiry of the stated period, no oral hearing is sought, the
parties ought to be allowed, within a further stated period, to apply in writing to
vary the costs order nisi on any grounds, including the existence of an effective
sanctioned payment or order. A party opposing variation should so submit in
writing. The order absolute for the costs of the taxation should also be handed
down without a hearing so as not to nullify the benefits of a provisional
taxation.
Notes
See the discussion of Proposal
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