Because many of the documents in support of a bill are confidential and/or privileged there is no disclosure stage in detailed assessment hearings as there is in other civil proceedings.
The court may direct the receiving party to produce any document which, in the opinion of the court, is necessary to enable it to reach its decision. These documents will in the first instance be produced to the court, but the court may ask the receiving party to elect whether to disclose the particular document to the paying party in order to rely on the contents of that document, or whether to decline disclosure and instead rely on other evidence (Part 47 Practice Direction (para 13.13)). The court will exercise its discretion to put the receiving party to his election having regard to the requirements of fairness and justice. In particular, it may consider whether the production could be made to the paying party’s legal representatives only, and whether any confidential matter which is irrelevant can be excluded from the production. No production of documents is appropriate where the court determines that the point of dispute raised is spurious or vexatious only.
If, in respect of any privileged documents, the receiving party elects to waive its privilege by showing them to the paying party, that waiver is for the purposes of the detailed assessment only. When showing documents to the paying party it may be permissible to blank out parts of the disclosed documents on the ground that they are irrelevant to the issue of costs.
It is standard practice for the client care letter (redacted where appropriate) to be shown to the paying party. The Court of Appeal has held that it should be the usual practice for a conditional fee agreement (redacted where appropriate) to be disclosed for the purpose of costs proceedings in which a success fee is claimed.