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Welcome to Inside Law Clarity at Last! For cases that do not go beyond Provisional Assessment, the £1500.00 allowance acts as a cap on recovery of Party/Party costs and quite rightly excludes the court fee, which alone can be as much as £980 not to forget VAT. Amendments have been made to the CPR coming into force 1st October 2013. Costs Budgets are still a hot topic and conversations are held daily with clients and prospective clients who wish to receive guidance and advice. Please, please, please instruct your Costs Lawyer/Draftsman in plenty of time to ensure matters are not rushed. Ideally as soon as matters have been issued, which gives an ample window for the exercise to be carried out and it is a must that Solicitor client and Costs Lawyer confer in order that they work as a team. There is much thought to be given to budgets and crucial assumptions to be made, Counsel and experts are all to be involved in the process in stating their reasonable fees. The costs budgeting regime was thrown into the spotlight again with the firm representing Andrew Mitchell MP in his Libel action ‘plebgate’, failed to submit a costs budget in time. Failure to get a budget in seven days before the case management conference limited the budget to court fees only. Be warned! No longer can budgets be prepared on short notice, timing is the key. With August almost over as I write, and with emails met with I am on annual leave and will revert when I return to the office, it has given us the opportunity in our office to surface and take a deep breath, ready for the influx of Budgets expected from September onwards. Should you wish to know more about our Budgeting service, please feel free to call our offices and speak with either Paul Kay or myself who will be happy to talk things through with you or alternatively email addresses as below. Controlling Costs Paul Reason Costs Lawyer and Managing Director. 2 The leading expert in the field of civil procedure and adviser to the top judiciary on law reform Things have changed and times are different.There is to be greater scrutiny of costs than ever before. Oddly, a series of recent cases identify avoidable errors. Equally, if you are the paying party then these represent useful arguments to throw at the other side. 1. No matter how glamorous your expert, do not have them in court for the entirety of the hearing unless there is something monumental about the case. In ELVANITE FULL CIRCLE LTD V AMEC (2013) EWHC 1643 (TCC) Coulson J rightly declared that it was completely unnecessary and so unsustainable for one expert to attend every day of the trial. Do ask yourself if a case warrants an expert at all. In lower value cases there is now a real temptation for Judges to foist a single joint expert upon the parties since one expert ought to be cheaper than two. 2. The ELVANITE decision is also well worth reading because the Judge gives guidance on when it might be just to vary a court budget. Critically, he says at paragraph 54 of the transcript that it is no good reason to adjust the numbers where they had “woefully underestimated the experts’ fees”. I have no financial interest here but, frankly, i think it bonkers to draw a budget without some input, great or small, from your chosen costs lawyer. 3. Finally, ELVANITE states at paragraph 50 that, post Jackson, “questions of prejudice are likely to be much less relevant than they were before”. Exactly. No one should think that they can now escape punishment for breaching the Rules just because it does not directly damage their opponent. The new thinking is that Rules are there to be obeyed and to default is a wrong in itself. 4. Anyone preparing witness statements should be much more precise and selective than ever before. In NICHOLLS V LADBROKES (2013) EWCA Civ.1963 Lord Justice Jackson gave some, as ever, superb guidance which every defendant should take to heart. ”The defence of any personal injury case is a serious task, to be undertaken in a fair and responsible manner. It is inappropriate to serve witness statements which refute every allegation, whether right or wrong “(at para.69). He continued “the vast majority of personal injury actions settle before trial on the basis of the written evidence served. Therefore the written evidence matters, even if a party knows that it will abandon certain points in the event of a trial” (para.70). Because of unsatisfactory conduct in this regard the winning defendant lost 20% of all costs. 5. The cost of Counsel is an integral part of the litigation spend. Having watched the modest legend that is HHJ Simon Brown QC in the budgeting pilot, you and your clients now need to decide whether the proposed advocate is justified. Do we need a silk? Is this the right person for the job having regard to complexity, content and potential value? If a decision is taken that you suspect might ultimately be challenged then make a contemporaneous note for the file setting out your justification. It can do no harm. 6. It might sound trite but I believe that every litigator will be safer if, at every step along the litigation path, they ask themselves whether what they are proposing to do is reasonable. Different people may come up with different replies but that is now the simple, sensible litmus test. 7. No one, not even Sir Rupert, knows what proportionality means today. That is a question to be answered by the Court Of Appeal. I suggest that keeping a watchful eye on the relationship between damages and costs will probably be your smartest move to avoid trouble . Enjoy your read. Paul@rcostings.co.uk Paul.kay@rcostings.co.uk Professor Dom Regan Dominic Regan is, with Jef Zindani, the co -author of ‘ Surviving Jackson ‘July 2013 published by Sun at £100.