The new legal landscape has now been traversed for the best part of 6 months so what has changed?
On the face of it not too much; the simple reason being the majority of the changes introduced were not retrospective and it is the cases issued post April 2013 and work undertaken post April 2013 that will be scrutinised in the coming months.
Solicitors, Barristers and Costs Lawyers alike await early guidance with regard to, for example, how the Costs Judges will apply the new rules relating to Proportionality. We are attempting to get to grips with the fact that costs “which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”* but just how will the Costs Judges, as suggested in the Jackson report and subsequently, undertake a detailed assessment over a number of days allowing only items considered reasonable and proportionate to the issues involved and amounts claimed “stand back” at the end of the assessment to consider the total allowed and then if the figure still appears “disproportionate” make a further reduction? Should the Costs Judge simply allow a total figure he finds acceptable? Should a percentage reduction be applied? Should the damages (if any) be taken in to account i.e. costs not more than the damages recovered or damages plus 20%? Costs Judges have confessed to not knowing the answer and unavoidable satellite litigation looms.
Budgets have been embraced by both sides though not it must be said warmly; teething problems still need to be addressed particularly in respect of the available “on line” budgets which to date have failed to carry out correctly the necessary calculations…still early days and certainly the judiciary appears to have taken to budgeting.
However it is case management which has really been adopted with great relish by the Courts if early cases are any thing to go by. Amendments to budgets are not being entertained unless there is very (very) good reason; cases are being struck out for non compliance with time tables set out in the Civil Procedure Rules and Judges are being advised that strong case management decisions will be supported by the Court of Appeal.
There is perhaps no better example of the tough new approach than the recent matter involving Andrew Mitchell MP who sued the Sun for damages arising out of the so called “plebgate” incident. Mr M’s solicitors failed to provide a costs budget 7 days before the first case management conference as required and the sitting judge using his powers to impose sanction limited the Claimant’s costs to “applicable court fees” The application for relief was dismissed by Master McCloud stating “there is no evidence before me of particular prejudice to Mr Mitchell arising from my order: it would be for him to demonstrate that it would be wrong of me to make assumptions about the wording of his CFA agreement with his solicitors which may or may not mean that my sanction affects him financially or in terms of legal representation” the judge went on “Even if it did effect him financially and as to representation, there are many claimants who manage without lawyers and it could not be said that he would be denied access to a court more than is the case for others if they have to represent themselves”.
It remains to be seen if the new “aggressive” application of the Rules and Directions that accompany the rules will continue or if we will see a return to a more flexible approach to non-compliance however the message to the profession from the Courts is clear – fail to follow orders, directions and rules at your peril and if you do fail check your professional indemnity insurance is up-to-date and provides sufficient coverage!
*CPR 44.3 (2) (a)
Gary Knight, Partner and Costs Lawyer