Page 5 - Inside Law Magazine Issue 10 - Spring 2015
P. 5

The budget must be in the form of Precedent      The failure to file and serve a budget incurs          Jonathan Wiseman
H and in landscape format (CPR 3E.6). To         the wrath of CPR 3.14. This provides that
use your own format runs the risk of falling     “unless the Court otherwise orders, any           Jonathan is a Senior Law Costs
foul of a Court Order, or worse missing es-      party which fails to file a budget despite        Draftsman with R Costings.
sential information or work and time, thereby    being required to do so will be treated as
leaving an insufficient budget to undertake      having filed a budget comprising only the         Email Jonathan your Costs Budgeting
the work required. The Court is unlikely to      applicable Court fees”. This is, rather obvi-     queries at: jonathan@rcostings.co.uk
allow for amendment to a budget without          ously, a sanction and CPR 3.8 requires that       or call him on 01480 463499
good reason and the inability to utilise the     the defaulting party apply for relief from the
generally accepted and widely available form     sanction. This has impacted dramatically         party’s last approved or agreed budget for
is not going to be accepted as good reason.      on the Court’s time. Courts are now full of      each phase of the proceedings; and (b) not
                                                 Applications for relief as well as dealing with  depart from such approved or agreed budg-
The Precedent H is divided between various       a Costs Management hearing or three and          et unless satisfied that there is good reason
phases in the litigation and these comprise;     an abundance of Provisional and Detailed         to do so”. It should of course be noted that
Pre-Action, Statement of Case/Issue, CMC,        Assessments.                                     this only applies to costs assessed on the
Disclosure, Witness statements, Expert                                                            standard basis and not an indemnity basis.
Reports, PTR, Trial preparation, Trial and       So to the Costs & Case Management Confer-
Settlement/ADR. It should be noted that          ence (CCMC) itself. This has to this point,      This means that once budgeted, heard and
these phases do not run concurrently or in       and for the most part, been undertaken in        approved, unless the matter lurches dramati-
chronological order. The Courts guidance,        person despite CPR 3.16(2) indicating that       cally in a previously unseen direction, the
whilst brief, indicates under which phase        “Where practicable, costs management con-        most you are likely to achieve at conclusion
various items of work are to be allocated.       ferences should be conducted by telephone        is this approved sum. It therefore stands to
Although there remain a number of work           or in writing”. Some Courts have ventured        reason that this process is undertaken with
elements that appear homeless and not            into the territory of the telephone hearings     the utmost care and attention to detail. If
adequately provided for. These have in-          but these remain very much the exception         there is a sudden sea change in the case,
cluded in the past, such work as inquests        rather than the rule.                            urgent attention is required to ensure that
and corresponding with Case Managers.                                                             you either agree a revised budget with your
Such work is dependent largely on the cor-       There are various and differing directions       opponent or seek approval of a revised
respondence and topic therein.                   made for CCMC’s and differing processes          budget with the Court. The urgency of
                                                 surrounding listing which persevere to this      doing this cannot be overstressed as this
Along with the phases provided for there are     day. Some County Courts list the matter for      process is not one that can be undertaken
sections allowing for contingencies. These       Case Management and separately thereafter        retrospectively.
allow for work that is anticipated but which     Costs Management and the Royal Courts list
does not sit comfortably in any of the phases    both together and set directions and budgets     The budgeting process is not perfect. It is
already provided for. It is not envisaged that   at the same time. This is something that         open to abuse and in some instances tactical
this is a “catch-all” but rather work such as    seems to remains subjective and depend-          budgeting but under the changes to CPR
formal mediation preliminary issues and          ent on the Court and Judge. Thus far the         3 it is now necessary, more than ever, to
Applications for disclosure. Together with       best course of action has been to know in        ensure that multi-track cases are managed
ensuring that work is correctly placed within    depth the case, evidence and reporting. In       effectively and work properly recorded and
the phases comes the need to accurately          this way the budget being presented can be       monitored as to do otherwise could prove
include assumptions on the front page as         qualified and sensible assumptions defended      very costly indeed.
to the matters likely direction and the work     when before the Court.
required in taking it there. The process                                                                                                5
requires the matter to be budgeted to Trial      Post CCMC and following approval of a
“unless otherwise ordered” so it is neces-       budget by the Court it is necessary, in most
sary to include sufficient work and estimated    cases, to recast the Precedent H to allow
time to get the matter to Trial and/or ADR.      for any reductions or increases made. This
                                                 should be done in a timely manner and the
This includes the obtaining of estimates of      recast (front page) of the budget filed with
fees from experts with regard to reporting and   the Court for the record. This will remain on
their attendance at conferences and Trial.       the Court record, together with any comment
                                                 on the budgets made at hearing, until the
If this all seems daunting, the fact that it is  matter is concluded.
so seemingly easy to get so catastrophi-
cally wrong should focus the minds of all        This approved and recorded budget allows
but the foolhardy. There have been many          the Court to control the recoverability of the
Judgments in the past two years showing          parties’ costs. CPR3.18 deals with the as-
just how badly the process can go if tackled     sessment of costs where a CMO has been
lightly. (See Paul Kay’s ‘Headline Caselaw’      made and states “In any case where a costs
article on page 8)                               management order has been made, when
                                                 assessing costs on the standard basis, the
                                                 court will (a) have regard to the receiving
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