COSTS ASSOCIATED WITH TRIAL

2.1 Court fees. A court fee is payable (a) when the pre-trial questionnaire is filed or the trial date fixed (£100); and (b) upon listing (the “hearing fee”): £1,000 for a multi-track track case; £500 for the fast track and between £25 and £300 for a small claim (depending upon the quantum of damages claimed).

2.2 Counsel’s brief fee. Counsel is usually retained for trial by way of a “brief fee”.

This brief fee is a fixed fee for all of the preparation work together with the first day’s advocacy in court. A “refresher” fee is then payable for any subsequent days in court.

The alternate method of payment is hourly rates. However this method of billing is used infrequently for trials. Fees for any appeal will be charged separately. Counsel’s fees are extremely varied, as shown by Table 15 in chapter 8, which sets out the approximate hourly charge-out rates for barristers as assessed by Legal 500 in 2007.

Larger cases may have more than one counsel, usually a leader and a junior, but sometimes more.

2.3 Solicitor time costs. In the run up to trial the amount of time spent on a case is likely to increase significantly. Bundle preparation, building the case, helping counsel to prepare the skeleton argument, liaising with the client, witnesses and experts to ensure that everyone has access to the necessary documents and is available when required are a few of the main tasks that will be required. The amount of logistical work should not be underestimated. The solicitors’ time will be charged out on hourly rates previously agreed. There is not normally any kind of uplift for trial, and soon as the solicitor stops work there will be no more fees payable.

2.4 Trial bundles. This process may commence many months in advance of the trial and the costs can be huge. Bundles usually need to be lodged three to seven days before trial, unless a different order has been made. However, counsel will usually insist upon bundles at the earliest opportunity. PD39 paragraph 3.2 sets out which documents should be included. Ostensibly these are the pleadings, witness statements, expert reports, case management documents and any other “necessary”

documents. The bundles should be compiled in accordance with the rules in the CPR and the relevant court guide. They must be paginated. Pagination is an important task, but one which nonetheless increases the costs and preparation time. Many factors add to the costs of preparation:

(i) Co-operation. Responsibility for preparing the bundles falls on the claimant, but the bundle must be agreed and should contain all of the documents that any

Chapter 44: Trials party proposes to rely upon.¹⁴⁷ There is an obligation on the parties to cooperate

in the preparation. In practice, it appears that a constructive attitude is not always adopted, and substantial correspondence may be entered into in order to agree the bundle (incurring additional costs). However, unless one party is clearly in default it is usually quite difficult for the court to intervene. Parties also seem to take the view that the court will look dimly on both parties if they need to resort to the court for directions on how to proceed.

The need for “courtesy and co-operation” has been noted in the Report and Recommendations of the LTWP.148 The report advocates the use of sanctions if the parties do not act appropriately. However, the problem is that it can be difficult to ascertain which party is truly at fault.

(ii) Cross-referencing. Documents exhibited to all of the witness statements and pleadings are arranged chronologically in one set of bundles. The trial bundle reference of each document is then written on the witness statement or pleading so that the court/counsel can easily locate the document. This can be a time consuming, and therefore expensive, process.

(iii) Translation and transcription. Foreign language documents must be translated into English and, where possible, the translation should be certified by a recognised translation company. Illegible and manuscript documents should be followed in the bundle by a transcribed, legible copy. Such services incur additional costs.

(iv) Volume. An approach that is sometimes is adopted is the “better safe than sorry”

attitude of throwing most of disclosure into the bundles. This wastes costs – not only copying charges, but counsel and the court’s time.¹⁴⁹ It is not uncommon to see trial bundles that run to hundreds of volumes, yet only a handful of bundles are actually referred to at trial. The court has the power to order cost sanctions if the trial bundle becomes too voluminous, but given that few cases actually reached detailed assessment this is insufficient deterrent to incentivise co-operative and cost effective bundle preparation.

(v) Copies. A copy of the bundle must be made available for the judge and, where appropriate, the witness. In addition, each counsel and set of instructing solicitors will also have at least one set. It is imperative that all copies of the bundles are the same otherwise this can cause confusion, and delay, in the court room. It is therefore usually necessary to copy check the bundles to ensure that they are exact duplicates. Again, this task takes time and contributes to the costs.

(vi) Originals. Although original documents are rarely examined during a trial, other than in fraud cases, there is a requirement that the original of any document in the trial bundle should be available in court.

(vii) Updating. The various copies of the bundles will need to be updated throughout trial to include any new evidence or skeletons that may be served, additional documents that are referred to in court and the daily transcripts. The bundles may need to be corrected to amend any errors. This process can take time. It may also go awry, causing problems within the courtroom which lead to time (and therefore costs) being wasted.

147 CPR 39 Practice Direction A, paragraph 3.9.

148 K16, page 52.

149 A counter-argument is sometimes advanced as follows. It is cheaper to put everything into the bundle than for senior solicitors or counsel to spend many hours identifying those particular documents which will be referred to at trial.

Chapter 44: Trials

2.5 Transcripts.¹⁵⁰ In large trials the parties may use a realtime transcription service, so that the transcript is available in court only moments behind the actual spoken words. This allows counsel to make notes alongside the transcript and for individuals outside the court to know what is going on (the system can be hooked up externally). This service typically has a base cost of around £840/day. This cost is usually shared between the parties. In addition each party will be charged for the number of “licences” it requires i.e. screens upon which the transcript can be viewed.

This is an additional cost of between £50-£220 per licence/per day (depending upon the provider and the number of licences required). Some providers will also charge a

“set-up and take down charge” which can be around £300. Hard or electronic copy transcripts are provided at the end of each day, some providers charge additional fees for the provision of these documents. Additional charges may also be incurred if the court sits over 5.5 hours in a day or anytime at the weekend/on a bank holiday; for non-sitting days (if the provider is not given sufficient notice); and for attending hearings outside of London.

2.6 Interpreters. Where the witnesses or experts are not sufficiently fluent in English to understand the questions being put to them or to respond, the court will allow an interpreter to assist. A knock on effect of this is the lengthening of the trial.

Further, it can be a difficult and time-consuming task for the parties to identify interpreters of the necessary standard to do the translating. Interpreters are usually paid about £500 per day.

2.7 Experts. A number of the submissions commented on the expense of having experts attend trial. Their expenses will be remunerated and their time will be paid for. Sometimes the expert may have travelled. Lord Woolf looked at the possibility of capping the amount that could be paid to experts (discussed further in chapter 42).

He concluded that if there was a cap, this may affect the quality of expert who would be prepared to take on the role. Alternatively, if there was only a cap as to the recoverable amount, it may result in a disparity of expert between two parties if one party had the resources to fund the difference between the cap and the amount that their preferred expert was requesting. However, one option that could be considered would be to make the costs of the expert’s attendance at the trial irrecoverable on the days when he (or perhaps even another party’s expert) is not giving evidence.

2.8 Use of IT at trial. The Commercial Court’s Long Trials Working Party (“LTWP”) recognised a need for both the judiciary and senior lawyers to “get to grips with IT and to adopt a positive stance towards the use of IT in court, in particular in trials”.¹⁵¹ Currently there is little use of IT at trial. Part of the reason for this must be attributed to the fact that very few of the civil courts are set up to conduct paperless trials, therefore the use of IT must be organised and funded by the parties themselves. However, part of the reason must also be attributed to the reticence of some practitioners, particularly counsel, to embrace this new form of working.

2.9 When it is used properly, IT can assist to make proceedings more efficient and thereby save substantial costs. For instance, IT has been used very satisfactorily at the Hutton Inquiry and the Inquests into the deaths of Diana, Princess of Wales, and Mr Dodi Al Fayed. The LTWP acknowledged the importance of developing the use of IT. Until such time as the Commercial Court moves to the new Rolls Building the LTWP has recommended that the parties in each case should consider whether the use of IT would be of assistance. Following the move there is an indication that there will be a much more stringent requirement to move to paperless trials. Hopefully the

150 All prices in this paragraph are shown exclusive of VAT.

151 Paragraph 109 of the Report and Recommendations of the LTWP.

Chapter 44: Trials Electronic Working scheme (see section 5 of chapter 43) will make this possible. If

successful, this model can hopefully be rolled out to the other courts.

2.10 The court encourages IT to be used “where it is likely substantially to save time and cost or to increase accuracy”. As stated in chapter 40, the use of IT and electronic documents needs to be managed well from the outset to ensure that costs are kept proportionate. For the majority of cases, unless the basic infrastructure is already in court, the costs of obtaining the IT equipment and uploading the documents will be disproportionate. However, even now there will be some large cases where some or all of the following may be appropriate:

(i) Video links. Permission is required for evidence to be given by video link (see CPR Part 32 Practice Direction Annex 3).¹⁵² An estimate from one of the leading IT providers at the RCJ indicated that it costs around £1,250 for setting up the equipment for the first day’s evidence and to have an engineer on stand-by, the cost reduces to around £750/day for any subsequent days.

(ii) Presentation of video or audio evidence. If permission has been given for such evidence, equipment can be brought into court to show a specific piece of pre-recorded evidence. These costs are usually less than those outlined above.

(iii) Electronic trial bundles. Currently there is a great reluctance by counsel to adapt to the use of electronic bundles as the majority are wedded to their post-it notes and hand written notes. The technology is beginning to develop and various competitors are beginning to emerge on the market. This can only help to increase the capabilities of these products and to reduce the cost. If disclosure has not been done electronically it can be time-consuming and costly to create electronic bundles. If e-disclosure has been given, but poorly or on an inadequate system it can also be difficult to generate electronic bundles efficiently. However, when electronic disclosure is done well, then electronic bundles can be a much more efficient and cost-effective way of creating the trial bundle. It is most likely to be done well if it is considered very early on in the process (i.e. at the beginning of disclosure).

(iv) Visual display evidence.¹⁵³ A system can be set up in the court room which allows an operator to display the relevant document onto screens around the room. This will usually be run in conjunction with an electronic trial bundle. It has the benefit of ensuring that everyone in the court room is looking at the same document. A charge will be made for processing the documents into the necessary format (this process can be combined with the compilation of an electronic trial bundle). A charge is usually incurred for setting up the facilities in the court room. These costs seem to vary from around £200 to £600. Daily rates will then apply for the hire of the equipment and the attendance of an operator. The parties will be charged around £750 per/day for the operator.

The equipment hire varies depending upon the number and size of screens and the period of hire. Some providers are more prescriptive with their rates than others, charging for each length or type of cabling required.

(v) Internet connection. Some court rooms already have this facility, sometimes BT will allow broadband to be set up quite cheaply. Those who provide real-time transcription services will usually help to set up internet access.

For each of the above, better value contracts can usually be obtained for longer trial periods. In all cases, cancellation charges may apply and will vary from

152 Also paragraphs 14.13 – 14.16 of the Chancery Guide and Section H3 and Appendix 14 of the Commercial Court Guide.

153 All prices in this paragraph are shown exclusive of VAT.

Chapter 44: Trials

provider. As the majority of these services have a “base cost” which is shared between the parties, these services may be cheaper (per party) in multi-party cases.

2.11 Logistics. Costs are incurred in setting up the court room, costs of travel and accommodation costs for the witnesses and experts and, to a lesser degree, counsel and solicitors. Those who do not have offices in the immediate vicinity to court may have to hire a room at the court for around £50 +VAT per day.

2.12 Client time. It is likely that the client will want to be in court for the majority of the trial, or they will at least need to be easily contactable in case additional instructions are required. Although not a direct cost of litigation that is a cost between the parties, there is the knock on cost to the client’s business in terms of management (or other) time spent in court. The LTWP Report recommends that the Commercial Court Guide should be amended to emphasise the judge’s power to require senior representative to be present in court, by video link if necessary.

Although this has merit, there is some concern that such an approach could deter foreign litigants from the English courts.