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IS THERE SUCH A THING AS TOO MUCH INFORMATION?

By Ben Simpson

Barking, Havering and Redbridge University Hospitals NHS Trust v. AKC (a protected party by litigation friend MCK) [2021] EWHC 2607 (QB)

On 29 September 2021, Mrs Justice Steyn QBE provided clarification about the information to be included in a bill of costs. The judgment highlights the importance of certainty and transparency of information in a claim for costs.

BACKGROUND

AKC (“the Respondent”) made a clinical negligence claim against the Hospital Trust (“the Appellant”), in early 2012.

Following the Court’s approval of settlement on 7 March 2019, detailed assessment proceedings in respect of quantum costs were commenced, and these were set out in a hybrid bill of costs. The hybrid bill comprised an old format paper bill for work undertaken until 6 April 2018 and a new format electronic bill covering costs thereafter. This reflected CPR PD 47 paragraph 5.1 which requires all work after 6 April 2018 to be in electronic format, but a paper bill can be completed for work prior to this date.

Points of Dispute and Replies to Points of Dispute were exchanged. The representatives for the Hospital Trust raised preliminary issues in respect of the information contained within the bill. On 2 January 2020, they made an application to strike out AKC’s bill of costs. They did not seek to strike out the claim for costs, only the bill in its current format.

The preliminary issues were determined by Master Nagalingam in the SCCO, following a hearing on 27 April 2020. The Costs Judge accepted he had jurisdiction to sequentially find that the bill was defective but dismissed the strike out application.

THE APPEAL

The case was listed for a rolled up one day appeal hearing. There were three grounds of appeal:

  1. The bill of costs was not properly certified because the signatory was not identifiable.
  2. The paper bill failed properly to give the name and status for each fee earner and to identify the work done by each fee earner, contrary to the requirements of CPR PD 47 paragraph 5.11(2).
  3. The electronic bill failed to properly give the name, the SCCO grade, the date from which rates were effective for each fee earner and/or to identify the work done by each fee earner contrary to CPR PD 47 paragraph 5A.2.

Ground 1 – Bill Certification

The Court held that the identity of the signatory must be disclosed within assessment proceedings:

“As is common ground, certification must be by an individual and, if the bill of costs is not certified by the client, the individual must be a solicitor.” Paragraph 35.

“The provisions on which the Appellant relies do not expressly require the signatory to be identified on the face of the certificate. Nevertheless, I agree with the Appellant that as a matter of ordinary interpretation, bearing in mind the purpose of certification, it is implicit that the solicitor who signs the certificates must be readily identifiable on the face of those certificates. It is inherent in the concept of certifying or attesting to a matter before a court of law, at least in circumstances where the CPR requires (as it does here) that a matter is certified or attested by an individual, that the signatory should disclose their identity to the court.” Paragraph 36.

Grounds 2 & 3 – Fee Earner Information

The Court held that the identity of the fee earner had to be provided, stating the following.

For paper bills:

In my Judgment, paragraph 5.11(2) requires both the status and the hourly rate to be given on an individual basis, rather than by reference to categories of fee earners, and it follows that each fee earner should be named in the bill. First, this follows from the language of paragraph 5.11(2) which refers to the status of the “employee” (singular) “in respect of whom costs are claimed” and to the “hourly rates claimed for each such person. – Paragraph 94.

Secondly, the provision must be interpreted purposively. A bill of costs in which claims are made for work done by reference to categories of fee earners, rather than by specifying the work undertaken by each individual fee earner, is intolerably opaque. It results in the paying party and the assessing judge being unable to consider “all the circumstances” when reaching conclusions as to the amount of costs likely to be or to be awarded when applying CPR 44.4 (see Sharp v Aviva at [30])”. – Paragraph 95.

While it is good practice to specify each fee earner’s SCCO grade – and, if it is not given, a paying party may request such information and the court may order its provision – I do not consider that the rules and practice direction require fee earners’ SCCO grades to be specified in a paper bill of costs.” – Paragraph 100.

However, the Court did warn:

Accordingly, I agree with the Costs Judge that the Respondent was not required to specify the SCCO grade of each fee earner in the paper bill of costs. I also endorse his observation that, if a receiving party chooses not to provide such information, doubt will be resolved in the paying party’s favour.” – Paragraph 103.

For electronic bills:

The Judge found that the AKC’s bill did not meet the “full functionality” requirement of the electronic bill of costs in that:

  • It did not include the names (or initials of fee earners).
  • It did not provide the information sought in the columns headed “LTM” or “LTM Name”.
  • It did not provide the grade for each (or indeed any) fee earner.

In respect of the grade column:

While I have found that it is not a breach of paragraph 5.11(2) not to provide the SCCO grades in the paper bill, electronic bills are required to be more informative and more transparent than was required for paper bills to be compliant. (Paragraphs 108 to 111).

Conclusion 

The Court held that the receiving party should no longer withhold basic information as to who had done the work claimed within the bill of costs, when the rules required information such as identity, grade, professional qualification, and post qualification experience.

The Judge granted permission to appeal on all three grounds (to the extent indicated on ground two).

COMMENTS

The decision reminds us that the information provided in a bill of costs, whether it be an old paper bill or in the new electronic format, must allow the paying party to understand the costs claimed, in a clear and comprehensible way.

To avoid uncertainty (and with the added benefit of being more transparent), we made the decision as a firm to move away from hybrid bills very early on and we produce electronic only bills in all cases allocated to the multi-track. We find the electronic format works well and is easier to manage than a hybrid bill.

When signing the bill, an individual or solicitor is certifying compliance with the indemnity principle (Bailey v. IBC Vehicles Ltd [1998] EWCA Civ 566). As a firm we strive to assist our clients with this compliance, not least through our vigorous checking procedures. We have also already adapted our templates to include further information about who is signing the bill of costs.

With reference to fee earner information, we always provide sufficient information – even when dealing with old format paper bills where electronic costing is not required. We have found that this approach works better for us and our clients, as well as the paying parties in receipt of our bills. When the new electronic format bills were introduced, it seemed a natural progression to continue this practice for new electronic format bills too, and we are glad we did!

If you would like any further information about us or what we do, please contact me or one of my colleagues and we will be happy to help.

A copy of the full Judgment can be found here: https://www.bailii.org/ew/cases/EWHC/QB/2021/2607.html

Ben became a Law Costs Draftsman after completing his law degree (LLB) in 2010. Ben has over 11 years’ experience in costs and qualified as a Costs Lawyer in 2019.

Since then Ben has accumulated experience in a wide range of costs matters, undertaking work for both paying and receiving parties in areas including catastrophic personal injury, clinical negligence, professional negligence, immigration, land disputes and high-value contractual disputes. He is familiar with all aspects of costs work including bill drafting, costs budgeting and advising / negotiating at all levels, including the Supreme Court.

New Court fees

Some Court fees have increased with effect from 30 September 2021. The details are here: EX50 – Civil and Family Court fees (publishing.service.gov.uk).

If you have any queries, please contact us.

Guide to Summary Assessment of Costs 2021: Which statement of costs to use N260, N260A or N260B?

By Mathew Bell

Take yourself back 16 years to 2005: Girls Aloud and Crazy Frog were in the charts, Prince Charles and Camilla Parker Bowles got married, and a relatively new MP called David Cameron succeeded Michael Howard as leader of the opposition.

2005 was also the last time the Guide to Summary Assessment of Costs was published…until now!

Alongside the much-anticipated publication of the new guideline hourly rates, an updated (and perhaps long overdue) Guide to the Summary Assessment of Costs was also released. Since 2005, the world of costs has undergone a radical transformation, particularly since the implementation of the Jackson reforms in 2013.  

In this blog I take a quick look at the forms to be used for summary assessment of costs.

When should summary assessment take place?

Paragraph 2 of the guide sets out when a summary assessment should be made, namely;

(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and

(b) at the conclusion of any other hearing which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim.

Summary assessments therefore take place routinely in fast-track litigation. They also occur in multi-track actions where an interim application hearing is listed, or the final hearing is listed for no longer than one day.

The format

Paragraph 7 of the guide sets out that the statement of costs should follow, as closely as possible, form N260, with which most practitioners will be familiar.

Alternatively forms N260A and N260B may be used for the costs of interim applications and trials respectively. Forms N260A and N260B were introduced in a pilot scheme (PD 51X) which will remain in operation until 31 March 2022. However, the inclusion of N260A and N260B within the guide would suggest that they are here to stay.

What are the new forms?

Both of the new forms are immediately different in appearance to the traditional N260. They are both in landscape and follow a similar format to the new electronic bill of costs, which breaks down work by phase, task and activity.

The N260A breaks work down by activity and the N260B uses phase and activity but not task.

The big change is that the forms can be produced in a spreadsheet, enabling calculation on the go.

But should we be using them…?

Advantages / disadvantages

The forms are perhaps more complicated than the N260 and will, at first, be more time consuming to complete.

However the traditional N260 has shortcomings, particularly on the rare occasions where there is a summary assessment of multi-track, budgeted claims. The N260 does not break work down by budgeting phase and, as such, the paying party and the Judge would have great difficulty in knowing whether the costs remained within budget.

Form N260B bridges the gap, as this breaks down work by phase and can therefore be summarily assessed in conjunction with the last approved costs budget/Costs Management Order.

The greatest benefit in my opinion is the ability to perform instant calculations, thus avoiding the frantic mashing of the buttons on a calculator during the hearing. It is remarkable that a self-calculating form was not introduced sooner.

So which form should I use?

There will be times when it remains simpler or cost effective to produce the traditional N260. However I do think the form’s days are numbered.

For interim applications form N260A is a more practical and useful tool for any advocate, and N260B is a must where a comparison with a budget needs to take place.

Mathew is a Costs Lawyer. He has a considerable experience in civil costs, particularly clinical negligence, catastrophic injury and commercial litigation. When not working, Mathew enjoys cycling (having recently completed the C2C cycle route in one go!) and spending time with his family.

“Please sir can I have some more!”

by Paul Mitchelhill

Some 11 years since the last tangible change, the final report (here) on the SCCO Guideline Hourly Rates has been published by the Civil Justice Council, following on from the ‘interim report’ published on 8 January 2021. The consultation period ran until 31 March 2021 and responses were used to produce the recommendations in the final report. Within the recommendations the report states at point 1 “The Civil Justice Council accept that the methodology used in the Interim Report is a sufficiently sound basis upon which revised Guideline Hourly Rates should be based.”

The conclusion of Section E: The Recommended Guideline Hourly Rates (GHRs) at page 63 confirms “The Guideline Hourly Rates proposed in the Interim Report should be implemented in full”.

The million $$ question…. What is proposed?

 Grade AGrade BGrade CGrade DTotal %
London 1£512 (25.2%)£348 (17.6%)£270 (19.5%)£186 (34.8%)97.1%
London 2£373 (17.8%)£289 (19.5%)£244 (25%)£139 (10.4%)72.7%
London 3£282 (13.7%)£232 (15.8%)£185 (11.9%)£129 (7%)48.4%
National 1£261 (20.2%)£218 (13.5%)£178 (10.7%)£126 (6.8%)51.2%
National 2£255 (26.78%)£218 (23.2%)£177 (21.3%)£126 (13.5%)84.78%
*The figures in brackets are the % increase over the 2010 GHRs

The areas benefiting most from the increase appear to be London 1 and National 2. There have been disputes over the proposed increases with some arguing that the London 1 rates remain well below what is being charged in some commercial matters.

The report sets out that the responses received were largely as expected and that those in favour of the report were largely receiving parties and those against were predominantly paying parties. Whatever the arguments, having waited 11 years already, it is surely time that a change was made to the Guideline Hourly Rates! As referenced in the report it has been widely accepted by both many solicitors and members of the judiciary that the rates were significantly out of date.

Guideline Hourly Rates were simply a very basic guide/starting point and generally the Court already applies an uplift (albeit broadly) to hourly rates to account for inflation, not to mention the complexity of the matter being assessed.

This report, if it does anything, should provide some reassurance to receiving parties that increased rates above and beyond the obsolete 2010 guideline rates should be allowed on assessment. It should also limit challenges to the rates from paying parties and offers based on the 2010 Guideline Hourly Rates, particularly on more complex matters which clearly justify an uplift.

There will of course be those who believe the proposed rates do not reflect an adequate increase but, as with the previous Guideline Hourly Rates, they are simply a starting point, and a well-prepared bill should set out the justification for a further uplift on the rates included as per CPR 44.4(3).

Paul is a Costs Lawyer with over 14 years’ experience in a broad range of areas, including clinical negligence, personal injury and commercial litigation. Paul qualified as a Costs Lawyer in 2012. Paul has a keen interest in costs and prides himself on providing a ‘second to none’ approach to client care.

‘[There is]… a time to keep silent, and a time to speak.’ Ecclesiastes 3:7

By Robert Parness

One of the lessons which can be most difficult for an advocate to learn, certainly one with which I have sometimes struggled in my 20 years of Court work, is when to keep one’s big trap shut.

Anyone who regularly appears in Court will have encountered opponents who can only either be paid by the word or be gunning for Sir Nicholas Stadlen QC’s record for the longest speech in British legal history, which ended in May 2005 having lasted for 119 days.

There is the opponent who insists in analysing in forensic detail matters which are not in dispute or which are axiomatic even to the Judge, as well as the opponent so brimming over with righteous indignation and legal erudition that they simply cannot wait their turn to speak and feel compelled to interject constantly.

My own belief, for what it is worth, is that less is definitely more when it comes to advocacy. Every word out of your mouth is a potential hostage to fortune, so say only what you absolutely need to in order to convey your point to the Judge and then keep quiet.

A lesson which I learned through bitter, or at least embarrassing experience is that this discipline should also extend to the Court waiting room.

Pre Covid 19, certain Courts in the north of England operated a rolling list system where everything was listed at 10:00 a.m. in the hope that enough cases would settle so that the remainder could be heard.

I was instructed to attend a legal aid assessment in such a Court following the client’s complaint about the operation of the statutory charge.

Upon arrival, I discovered that there was a fast track trial in the list ahead of me which was projected to last for the entire day. I therefore made enquiries of the usher as to whether it would be possible to sneak in my half hour legal aid assessment first. The usher asked whether the client (whom I had never met) would be attending, whereupon I uttered the fateful words: ‘I don’t know, they’re a bit of a loose cannon.’

It was at this point that a voice behind me exclaimed, loudly enough to cause everyone in the crowded waiting room to turn and stare: ‘Excuse me, I am sitting right here!’

Needless to say, I would have been extraordinarily grateful if the Earth had deigned to open up and swallow me whole at that point and I learned a valuable lesson about saying only what is strictly necessary even in the waiting room.

Robert Parness is a Costs Lawyer with over 20 years’ experience in civil costs, representing both paying and receiving parties in all aspects of civil costs from Bill drafting through to detailed assessment hearings as well as advising clients on technical points of costs law.

Serving a bill of costs by e-mail

“The provisions of the CPR for service upon a solicitor, for service by email and for service to the right postal address should be familiar to every solicitor who conducts litigation..”.

Master Leonard, Gregor Fisken Limited v. Bernard Carl

There have been two cases recently concerning the service of a bill of costs by e-mail: Serbian Orthodox Church – Serbian Patriarchy v. Kesar & Co, and Gregor Fisken Limited v. Bernard Carl.

In both cases the receiving party had obtained a Default Costs Certificate after the paying party had failed to serve Points of Dispute. However, in both cases the receiving party had failed to comply with the rules surrounding service.

These decisions are a salutary reminder that under PD 6A the party to be served by “electronic means” must have indicated in writing to the party serving that they are willing to accept service by that method, and service is only valid if sent to the nominated e-mail address(es).

Serbian Orthodox Church – Serbian Patriarchy v. Kesar & Co [2021] EWHC 1205 (QB)

In Kesar, the parties had agreed to accept service of documents by e-mail, which was a good start. However the solicitors for the Church then sent the bill of costs to a different e-mail address than the one nominated by Kesar & Co.

On Appeal the High Court upheld the Senior Costs Judge’s decision that this was not good service.

However, the High Court found there was good reason (under CPR 6.15 and 6.27) that the steps taken to bring the bill of costs to the attention of Kesar was good service. Foxton J reached that conclusion for the following reasons:

i) It is clear on the evidence that the documents to be served were sent to an email address which Kesar had used, and which was set up not to notify senders that the email was no longer in use or to direct them to a different email address, but automatically to forward the documents to the address which was in use.

ii) The documents were received through the agreed mechanism for service, and, short of opening the email (which Mr Kesar did not do before the DCC was entered), it would not have been possible for Kesar to know whether the notice of commencement had reached that email box because it had been sent there directly or forwarded in accordance with the arrangements Mr Kesar had put into place.

iii) This was in a case in which the served documents not only reached the party to be served, but did so by service to an email address which was set up to receive electronic service of documents such as the notice of commencement, and which ought to have been monitored to that end.

iv) By reason of its arrival at that email address, the document reached Kesar by a means from which, had the email been opened, it would have been obvious this was an attempt at formal service.

v) I accept that validating service involves prejudice to Kesar, but that prejudice is of a very different kind to, for example, loss of a limitation defence. The prejudice in question is that there has been a default assessment of its costs liability, unless it is able to show “good reason” for setting the DCC aside.

Unfortunately for Kesar & Co, they were then unable to demonstrate good reason to set aside the Default Costs Certificate of £222,256.85.

Gregor Fisken Limited v. Bernard Carl (SCCO 14/06/2021)

The Claimant obtained a Default Costs Certificate in the sum of £510,889.61 after the Defendant failed to serve Points of Dispute.

However the Claimant’s costs specialists had failed to effect good service in spectacular fashion.

Master Leonard observed, “…the Claimant attempted to serve upon the wrong person, by the wrong method, simultaneously serving by post to the wrong address. All of these errors could have been avoided with a little diligence.”

The Master was asked to consider whether to exercise discretion to retrospectively authorise service under CPR 6.27.

While it was reasonable to conclude that the bill of costs came to the Defendant’s attention, that factor alone was insufficient.

The Master commented “…that the Claimant has not taken reasonable steps to effect service in accordance with the rules. The provisions of the CPR for service upon a solicitor, for service by email and for service to the right postal address should be familiar to every solicitor who conducts litigation, and as I have said the multiple errors made in purporting to serve the Defendant could have been avoided with a little diligence.”

There was also substantial prejudice to the Defendant who was facing a costs liability of over £500,000 due to procedural irregularity.

For those reasons the application under CPR 6.27 was refused and the Default Costs Certificate was set aside.

Sidenote

The Practice Direction for the electronic bill of costs states:

5.1A  Subject to paragraph 5.1B, whenever electronic bills are served or filed at the court—

(a) they must be served or filed in hard copy, in a manageable paper format as shown in the pdf version of Precedent S; and

(b) a copy of the full electronic spreadsheet version must at the same time be provided to the paying party, or as appropriate filed at court, by e-mail or other electronic means.

How can one comply with the Practice Direction if the paying party does not accept service by e-mail? Answers on a postcard.

Changes to costs budgeting

From April 2016 the rules for costs budgeting will change again. The highlights are:

  • Where the value of the claim is under £50,000 the parties will only need to complete the first page of the Precedent H
  • Claims on behalf of children will be exempted from costs management
  • Where the Claimant has a “limited or severely impaired life expectation” (such as in mesothelioma cases) the Court will usually disapply costs management
  • The timing for filing Precedent Hs will change. Parties in lower value cases will need to file budgets with the Directions Questionnaire. In other cases budgets will need to be filed 7 (clear) days before the CMC
  • There is a new form, a “budget discussion report” which will formalise the parties’ submissions on the costs claimed
  • The rules are amended to provide that details of the costs claimed in each phase should be provided when the costs are assessed. Bills divided by reference to phase will be mandatory where costs are on the standard basis and the budget has been agreed or approved.

The statutory instrument can be found here, and the PD making document is here.

There were rumours the Precedent H itself would be amended to show the costs of drafting the Precedent H separately, and that further guidance would be provided on the phases in which costs were to be claimed but it is not yet clear whether these changes will occur in April.

 

ATE: Insurance Premium Tax increase

The standard rate of Insurance Premium Tax (“IPT”) will increase from 6% to 9.5% from 1 November 2015.

The guidance from HMRC states:

“This measure will have effect from the date that Summer Finance Bill 2015 receives Royal Assent. The new standard rate will be due on premiums treated by the legislation as received on or after 1 November 2015, except where insurers operate a special accounting scheme. In that latter case, the new standard rate is only applied to premiums relating to risks covered by the terms of a contract entered into after 1 November 2015. From 1 March 2016, the new standard rate applies to all premiums, regardless of when the contract was entered into.”

After the event insurance

Helpfully some ATE insurers have released guidance on how they intend to deal with the increase.

Guidance from DAS can be found here:  https://www.daslawassist.co.uk/news/read/142/.

Guidance from Allianz can be found here: http://www.allianzebroker.co.uk/news-and-insight/news/our-approach-to-IPT-changes.html.

It will be important to check with your ATE provider as to their approach to ensure you recover the correct amount for existing ATE policies.

You may also wish to inform the client if their liability has increased.

Important amendments to CPR

Thanks to Gordon Exall for spotting The Civil Procedure (Amendment No. 4) Rules 2015 which were laid before Parliament on 24 July. The SI can be found here: www.legislation.gov.uk/uksi/2015/1569/pdfs/uksi_20151569_en.pdf.

The explanatory notes are copied here:

“These Rules amend the Civil Procedure Rules 1998 (S.I. 1998/3132) by—

  • amending rule 3.1 (court’s general powers of management) to make it clear that the court’s powers include hearing an Early Neutral Evaluation;
  •  inserting a new rule 3.1A making provision for the way in which the court is to approach case management in a case where at least one of the parties is unrepresented;
  • inserting in Part 5 a cross-reference to provisions which disapply, or apply with modifications, provisions in that Part about access to court documents;
  • amending rule 7.4 to ensure that the claimant not only serves particulars of claim on the defendant, but also files them;
  • amending rule 47.6 to alter requirements for the commencement of detailed assessment proceedings;
  • inserting a new rule 52.15B covering appeals in planning statutory reviews; and
  • inserting a new Part 63A to introduce a new specialist list called the Financial List, to handle the more complex and important financial markets cases.”

Should you have any costs queries, contact us on 01900 385 285 or email Richard.jack@westlakeslegal.co.uk.

Mr Yeo’s yo-yo budget no-no

yo-yoThe former Conservative MP Tim Yeo is becoming an invaluable resource to litigators involved in costs budgeting (see our blog “Budgeting for contingencies”). Yesterday Mr Justice Warby handed down a second Judgment concerning Mr Yeo’s costs budget in his claim for libel against the publishers of The Sunday Times.

What happened?

On 10 July 2015 Mr Yeo’s solicitors served a revised costs budget and issued an application for approval of the revised budget on 13 July. They sought to add various sums, some of which were then either abandoned or agreed.

A more substantial amendment for £36,120 and described as “Contingent Cost A: Considering impact of parliamentary privilege and considering and making amendments to statements of case and witness evidence of both parties” was disputed. Of the £36,120, £21,000 had already been incurred by the time the costs budget was signed.

On behalf of Mr Yeo it was submitted that the Court could approve the revised budget pursuant to PD3E 7.6:

“Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions. … The court may approve, vary or disapprove the revisions, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed.”

Mr Justice Warby agreed with the Defendant’s submission that PD3E 7.6 was not “an apt vehicle” for obtaining the Court’s approval for costs already incurred. Mr Justice Warby found his decision was supported by PD3E 7.4 which states:

“As part of the costs management process the court may not approve costs incurred before the date of any budget. The court may, however, record its comments on those costs and will take those costs into account when considering the reasonableness and proportionality of all subsequent costs.”

How do you vary a budget if the costs have been incurred?

In support of the Claimant’s submissions Mr Justice Warby was reminded of his February judgment (para 71) which stated:

“If work identified as a contingency is included in a budget but not considered probable by the court no budget for it should be approved. If the improbable occurs, in the form of an unexpected interim application, the costs will be added to the budget pursuant to PD3E 7.9, unless the matter involves a “significant development” within para 7.6 in which case, if time permits, a revised budget should be prepared and agreed or approved.”

Mr Justice Warby placed emphasis on the words “if time permits”. He said “if the unexpected happens, and time does not allow for a revised budget to be approved before costs are incurred, then there will often, perhaps usually, be an unexpected interim application and PD3E 7.9 will apply.”

The fall-back position is CPR 3.18(b) which allows a party to try to persuade the Court on Detailed Assessment that there was good reason to depart from the budget.

Mr Justice Warby accepted there was some force in the Claimant’s submission that this position left him in “undesirable uncertainty about the recoverability of a large slice of cost until after the assessment stage”. However this did not lead the Judge to a different conclusion.

Timing

The issue arose on Monday 6 July and an amended budget was served on Friday 10 July. Mr Justice Warby said it was not clear “why a revised budget could not have been prepared sooner than 10 July.”

The criticism of the timing may alarm many busy practitioners. The Judge accepted his decision put “a high premium on swift action” but he did not see good reason to adopt a different interpretation.

The Judgment emphasises that costs budgeting is integral to litigation and should, where possible, be a prospective exercise, flowing with the litigation, not following it.

Round 3?

In any event Mr Justice Warby did not accept that there had yet been a “significant development in the litigation” within the meaning of PD3E 7.6 which would justify the approval of additional costs.

“He said I do not doubt that between 6 and 10 July Mr Yeo’s legal team did give attention to Parliamentary Privilege and the issues identified in the Revised Budget. But their approach does seem to me to smack of tactical manoeuvring.”

He went on to say:

“It may yet be that some revision in the budget of one or both parties may in future be shown to be justified in order to deal with issues of Parliamentary Privilege, but at present I am not persuaded that I have been presented with any justification for approving the revision put forward on that ground, pursuant to PD3E 7.6. “

We may yet see another decision on budgeting in this matter.

Thoughts

If there is a “significant development” in your litigation, identify the costs of the work to be done then move quickly!

The Judgment can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2015/2132.html.

If you have any queries or require assistance with costs budgeting, contact us on 01900 385 285, email richard.jack@westlakeslegal.co.uk or paul.mitchelhill@westlakeslegal.co.uk.