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This week I received a question from solicitor about completing a costs budget. This set me thinking about the fact that as we move forward, it is the more detailed points which come to the fore and need to be examined. As I am lucky enough not to have to participate in costs budgeting itself, you may think, why am I writing a blog on it?
Pre-implementation of the Jackson reforms, I reviewed costs budgeting extensively for the purposes of providing LexisPSL DR subscribers with guidance. In doing so I produced the following:
To be honest I became costs budgeted out and I did not even have to complete any.
When the questions came in, I had my own ideas on how to answer them, but I thought I would call on the experience of costs lawyers and judges who deal with costs budgets on a regular basis to get their views as well. The following sets out a summary of questions I received followed by the views of those I approached to assist me in responding.
The Precedent H guidance states that amendments to statements of case should not go in the Statements of Case phase. So where should they be included?
There are two things to consider with this question (1) are you concerned that such amendments may be required or (2) have such amendments already been made?
The Precedent H guidance states that mediation costs should not go into the Settlement/ADR phase. So where should they be included?
I find this guidance a little odd, surely it would make sense for all settlement related issues to be in one place in the form, but the guidance is what it is. So if mediation is the way forward in your case how should you deal with it in the costs budget?
This will depend on whether a mediation has already take place or not.
Note: as a point of interest the new J codes provide for mediation as part of the ADR/Settlement. Given the fact that a new bill of costs is in the advanced stages of preparation, it is intended that it will eventually be standard in all court proceedings and it be will be based on the use of J-codes does this mean that we will see mediation brought into the ADR/Settlement phase in Precedent H - the intention being that the cost budgets and the bill of costs work together? For those of you now worrying about J –codes see our post here.
There will be many other costs scenarios where practitioners worry about where to add costs, either estimated or anticipated, into the costs budget. The clear advice I received from costs lawyers and judges was that ‘form should not trump substance’. Judges will take pragmatic and sensible approaches to costs budgeting but for them to be able to do so you need to have provided them with the information they need. Judges are asked to deal with costs budgets in relatively short hearings but the time being taken to deal with them at CMCs is rising and there are some reports of 10 month backlogs for costs CMCs. What can practitioners do to help both themselves and the courts?
Practitioners will always encounter costs scenarios where they have to think twice about where to fit them into Precedent H – it will hardly ever be a quick and easy exercise. But surely that is part of the point? The process of completing Precedent H should bring into focus the costs to be expended versus the value of the case. It provides a moment of reflection during the litigation period to discuss with the client whether there is a better way to resolve the conflict. You may not like costs budgeting but it is here to stay, turning it into a positive rather than a chore might just make it more palatable.
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Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
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