Further revisions to Precedent H on the way

Royal Court of JusticeThe CPR Committee has confirmed that further changes to Precedent H will be issued shortly. In addition, it has provided an insight into some of the issues which customers have raised with us on the changes to Precedent H which came into force last month for cases commenced on or after 6 April 2016.

Set out below is a list of 13 queries that Lexis®PSL Dispute Resolution put to the CPR Committee about the revised Precedent H (costs budget) and new Precedent R (costs budget reports), together with comments from the Committee.


Query 1: The new ‘Expert fee summary’ cells. How are these designed to interact with the ‘Expert Reports’ phase in the form? The drafting note states completing this summary will populate totals for fees in the table on the left’, ie row 6 in the ‘Expert Reports’ phase. Questions:

  • What does the column ‘Type’ designate? Is it a type of work?
  • Do the four ‘future’ columns feed into the ‘Estimated costs’ columns in row 6?

Essentially, how precisely are the two sections dealing with experts supposed to interact?

Comment: See below—There are no set types. Type is type of expert. As to the use of ‘future’ and ‘past’—see below. This should be reworded—‘incurred’ and ‘estimated’. The expert fee summary ought to populate the ‘expert phase’—hence the figure in Cell AP15 should be the same as AU22 and AR15 should be the same as AY22).


Query 2: There is no date by the Statement of Truth in the revised Precedent H. Is this a deliberate change?

Comment: This is an oversight and will be rectified.


Query 3: The ‘Explanation of disbursements’ row is absent from the revised Precedent H (it sits below ‘Other disbursements’ against the phases in the old Precedent H). Is this deliberate?

Comment: This was deliberate to simplify the form and make it fit. The detail can be included in the assumptions if needed but in practical terms this was rarely completed.


Query 4: There is no ‘Assumptions’ cell in the ‘Pre-Action’ phase in the revised Precedent H. Presumably this is on the basis that this is a deliberate change on the basis that pre-action costs are already incurred by the time that the first budget is submitted and, therefore, are not subject to assumptions.

Comment: It is a deliberate change for the reasons set out.


Query 5: In 'Expert Fee Summary' under 'Expert Reports', does past and future equate to incurred and estimated?

Comment: That was the intention the Committee are in favour of a uniform approach and that the terminology should be altered so as to conform with other elements of the Precedent H. An amendment will be made to remove the word ‘incurred’ in cell AU7.


Query 6: Is 'Type' from a set category of experts?

Comment: No. See 1 above.


Query 7: What will/should happen when there are a very large number of items under the 'Expert Fee Summary section?

Comment: It will be rare to have more than 13 different experts, the answer is to continue on another sheet and then insert a global figure in this part of the report.


Query 8: Precedent H includes new lines above the Statement of Truth which will be completed by the judge. The new lines provide for:

  • approved budget
  • budget preparation costs allowed 1% of budget or £1,000

Beneath these lines it was envisaged that there would be a new line stating: 'Parties must complete the discussion tab and lodge no later than 7 days before the CCMH'. This does not form part of the form, is the omission intentional?

Comment: This is intentional and needs no change.


 Filing of budget discussion reports—Precedent R     

Query 9: The new CPR 3.13(2) provides, 'In the event that a party files and exchanges a budget under paragraph (1), all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference'.

Our understanding of this provision is that—in a claim involving one claimant and one defendant—where one party files a budget, the opposing party is responsible for filing the budget discussion report in relation to that budget, having first agreed the contents of the report with the party whose budget it is. Please confirm that this understanding is correct.

Comment: This is right.


Query 10: In a claim involving more parties than one claimant and one defendant, is it the intention of the rules that all of the parties (including the party whose budget it is) must agree the contents of the budget discussion report in relation to the filed budget, so that only one budget discussion report is produced and filed in relation to that budget?

Comment: This is interpretation is correct.


 Completing Precedent R

Query 11: The new Precedent H Excel document contains two tabs at the end, the first headed 'Defendant budget discussion report' and the second headed 'Claimant budget discussion report'.  Our understanding is that the 'Defendant budget discussion report' is the report relating to the defendant's budget, the contents of such report to be agreed by all parties (including the defendant) and filed by the other party/parties.  Similarly, that the 'Claimant budget discussion report' is the report relating to the claimant's budget, the contents of such report to be agreed by all parties (including the claimant) and filed by the other party/parties. Please confirm this understanding is correct.

Comment: This is right.


Query 12: The parties are encouraged to use the Precedent R Budget Discussion Report annexed to PD 3E. That document is headed "Claimant budget discussion report" and contains a line at the top 'Cost Budget of:.......' (that line is omitted from the budget discussion report tabs referred to at point 11 above).  Please confirm:

  • whether the two budget discussion reports contained in the new Precedent H Excel document described at point 11 above serve the same purpose as Precedent R, or whether there is some other reason why they are included in the Precedent H Excel document, and
  • whether it is correct that a report headed 'Claimant budget discussion report' is a report relating to the 'cost budget of' the claimant. (It is assumed that, despite Precedent R being headed 'Claimant budget discussion report', this precedent can be used equally in respect of the defendant's budget, since there is no difference in the content of the document itself)

Comment: 

  • The tab is intended to be Precedent R.
  • The heading should be blank for the title of the party to be put in it.

Query 13: The budgeting discussion reports circulated appear to be colour coded. Will practitioners be required to provide colour copies to the court?

Comment: It is desirable but not mandatory.


 

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