11. What remedies do I have if the receiving party delays in bringing or continuing taxation?
A receiving party is generally expected either to try to settle the bill or to serve a Notice of Commencement within 3 months of the completion date.
If the receiving party does not do so within that period, you may apply to the taxing master for an order requiring the receiving party to commence taxation within a specified time. Likewise, if the receiving party serves a Notice of Commencement but then fails to take the taxation forward, you may apply for an order compelling them to proceed.
The taxing master may order the receiving party to commence or continue the taxation within a set timeframe and may further direct that, if he fails to comply, he will be debarred from doing so. The taxing master may also impose conditions, such as requiring the paying party to pay money into court.
Whether or not a compelling order has been sought, if the taxing master is satisfied that there has been “undue delay” (inexcusable or inordinate delay) in commencing or prosecuting taxation, the taxing master can penalize the receiving party by:
- Order him to pay the costs of the application or disallow his costs of the taxation;
- Disallowing a portion or applying a global percentage deduction to his recoverable costs; or
- Disallowing or reducing post-judgment interest on his costs, shortening the interest period, or reducing the applicable interest rate.
Under Civil Justice Reform principles, paying parties cannot simply “let sleeping dogs lie” in the hope of accumulating delay to demand a heavy cost penalty later. If the paying party does nothing to prompt the receiving party to commence or pursue taxation, the court may take that inactivity into account when deciding whether, and to what extent, to penalise the receiving party.
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