Can I file and serve a costs budget by email in light of coronavirus (COVID-19)?

Can I file and serve a costs budget by email in light of coronavirus (COVID-19)?

Produced in partnership with Phillip Paterson of Hardwicke Chambers

The obligation on the parties under CPR 3.13 is to ‘file and exchange’ budgets by the stated time.

The rules use ‘exchange’ here rather than serve. This tends to suggest that the usual rules relating to service found in Part 6 of the CPR do not apply to cost budgets. Some caution should be adopted in relation to this approach, however. For example, in CPR 3.15(7), there is a requirement that ‘a party must re-file and re-serve’ the costs budget after budgeted costs have been approved or agreed. In cases such as BMCE Bank International Plc v Phoenix Commodities Pvt Ltd the requirement to ‘exchange’ has been assumed to be a requirement to serve. The safer approach is to assume that the requirements of Part 6 apply to cost budgets.

CPR 6.20 provides that service may be by fax or other electronic means in accordance with Practice Direction 6A. CPR PD 6A, para 4 provides the circumstances in which a document may be served by email. CPR 6.27 (referring to CPR 6.15) allows an application for service by alternative method to be made.

In practice, the COVID-19 (coronavirus) pandemic ought not to have a significant impact on a party’s ability to serve a costs budget in accordance with the rules. Provided sufficient time is allowed, it ought still to be possible to effect service of a cost budget by first class post. Plainly, budgets sent only in hard copy to a firm’s offices may not be received in a timely manner by the fee-earner acting. However, this problem can easily be overcome simply by sending a copy of the cost budget by email in addition to serving it by first class post. In circumstances where the coronavirus pandemic genuinely prevents this from happening, it is likely to amount to a good reason within the second limb of the Denton test for relief from sanctions/for a retrospective extension of time.

The position with filing is more important, given that a sanction is imposed automatically by the late filing of a cost budget under CPR 3.14CPR 5.5 allows a practice direction to make provision for the filing of documents by email. CPR PD 5B is such a Practice Direction, however, a number of significant courts are excluded from it as listed in CPR PD 5B, para 1.2. These are courts for which CE-filing must be used in accordance with CPR PD 51O. Given the length and likely file size of a cost budget, it ought always to fall within the scope of documents which may be filed by email, save where the proceedings are in a court covered by CPR PD 51O.

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