RELEVANT COSTS MANAGEMENT RULES WITHIN THE CPR

In document Review of Civil Litigation Costs: Preliminary Report (Page 114-119)

CHAPTER 45. COST CAPPING

2. RELEVANT COSTS MANAGEMENT RULES WITHIN THE CPR

2.1 The jurisdiction for costs management. Although not spelt out in terms within the CPR, the jurisdiction for costs management already exists. Within the CPR judges are given an armoury of powers which collectively enable cases to be managed not only by reference to the steps that may be taken in the given proceedings, but also by reference to the level of costs to be incurred. Chapter 45 “Costs capping” is just one manifestation of the court’s ability to manage costs under the guise of case management.

2.2 CPR rule 1.1. CPR rule 1.1 is the starting point. That rule provides:

“1.1 The overriding objective

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable – (a) ensuring that the parties are on an equal

footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and (iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

Chapter 48: Costs management (e) allotting to it an appropriate share of the court’s

resources, while taking into account the need to allot resources to other cases.”

2.3 CPR rule 1.1 imports two essential overriding objectives which directly lend themselves to costs management: saving expense and dealing with cases in ways which are proportionate. Within these two overriding objectives underpinning the court’s case management powers, it is axiomatic that the court has the jurisdiction actively to costs manage.

2.4 Rule 1.2. CPR rule 1.2 provides that the court must seek to give effect to the overriding objective when it (a) exercises any power given to it by the Rules; or (b) interprets any rule.

2.5 Costs management rules. Rule 3.1 sets out the court’s general powers of management. Rules 3.1 (2)(ll) and (m) provide that the court may:

“(ll) order any party to file and serve an estimate of costs;

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”

2.6 The jurisdiction on the part of a court to order a party to file an estimate of costs, at any stage of the proceedings, is a costs management tool.

2.7 CPR rule 3.1(3)(a) further supports the existence of costs management orders.

That rule provides:

“(3) When the court makes an order, it may –

(a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply

with the order or a condition.”

2.8 The conditions anticipated by CPR rule 3.1(3) do not exclude costs management conditions.

2.9 Rule 44.2. CPR rule 44.2 is an important rule in the context of costs management. That rule provides that where a court makes a costs order against a legally represented party, and the party is not present when the order is made, the party’s solicitor must notify his client in writing of the costs order no later than seven days after the solicitor receives the notice of the order. This is an express recognition of the desire within the CPR for the client to be kept advised of costs liabilities within the proceedings. Chapter 7, paragraphs 27-29 of Lord Woolf’s Final Report sets out the genesis of this rule:

“Control by the client

27. The Chief Taxing Master has suggested to me:

“that the most effective and simple method of keeping costs under control is to keep the client informed at all times as to what is proposed in his name.”

28. I agree this is extremely important. I have recommended in the interim report that it should be a mandatory requirement for a solicitor

Chapter 48: Costs management

to tell prospective clients how fees are to be calculated and what the overall costs might be; and to give reasonable notice when that estimate is likely to be exceeded and the reasons. If, in the past, the uncertainty of what might occur in proceedings provided justification for not making this a mandatory requirement, that justification would no longer exist under the more predictable system which I am proposing.

29. For the same reason I am recommending that clients should be present at case management conferences and pre-trial reviews, where the judge will be informed about the level of costs incurred to date and the likely amount of future costs that would be incurred by the programme of work that he is setting at the conference. The presence of the client should be a powerful incentive to adopt a realistic approach.”

2.10 There is no requirement within the CPR for the solicitor to tell the client how fees are calculated. Mandatory requirements in that regard are imposed on solicitors by the Solicitors Code of Conduct 2007.238 However, the CPR does introduce the concept of costs estimates along the lines envisaged by the Final Report and there are requirements within the CPR for costs estimates to be provided to clients – see section 6 of the Costs Practice Direction (“CPD”) to CPR Part 43. In chapter 7, paragraph 7 of the Final Report Lord Woof concluded:

“7. On the multi-track I recommended that at case management conferences and pre-trial reviews, the information available for the hearing should include an estimate of the amount of costs already incurred and the costs which would be incurred if the case proceeded to trial. I also recommended that it should be a professional obligation for lawyers to explain their charges to clients, including the potential overall cost of a case, and to give reasonable notice where an estimate is likely to be exceeded; and that legal professional bodies should encourage their members to undertake litigation, where this is practical, on fixed fees either for stages of the proceedings or for the proceedings as a whole.”

2.11 These sentiments were translated into section 6 of the CPD. This section of the CPD has been progressively revised and expanded over recent years. It now provides:

“6.1 This section sets out certain steps which parties and their legal representatives must take in order to keep the parties informed about their potential liability in respect of costs and in order to assist the court to decide what, if any, order to make about costs and about case management.

6.2(1) In this Section an ‘estimate of costs’ means – (a) an estimate of costs of –

(i) base costs (including disbursements) already incurred; and

(ii) base costs (including disbursements) to be incurred,

238 See chapter 3, paragraph 2.3.

Chapter 48: Costs management which a party, if successful in the proceedings, intends

to seek to recover from any other party under an order for costs; or

(b) in proceedings where the party has pro bono representation and intends, if successful in the proceedings, to seek an order under section 194(3) of the Legal Services Act 2007, an estimate of the sum equivalent to –

(i) the base costs (including disbursements) that the party would have already incurred had the legal representation provided to that party not been free of charge; and

(ii) the base costs (including disbursements) that the party would incur if the legal representation to be provided to that party were not free of charge.

(2) A party who intends to recover an additional liability (defined in rule 43.2) need not reveal the amount of that liability in the estimate.

6.3 The court may at any stage in a case order any party to file an estimate of costs and to serve copies of the estimate on all other parties.

The court may direct that the estimate be prepared in such a way as to demonstrate the likely effects of giving or not giving a particular case management direction which the court is considering, for example a direction for a split trial or for the trial of a preliminary issue. The court may specify a time limit for filing and serving the estimate. However, if no time limit is specified the estimate should be filed and served within 28 days of the date of the order.

6.4(1) When –

(a) a party to a claim which is outside the financial scope of the small claims track files an allocation questionnaire; or

(b) a party to a claim which is being dealt with on the fast track or the multi track, or under Part 8, files a pre-trial check list (listing questionnaire), he must also file an estimate of costs and serve a copy of it on every other party, unless the court otherwise directs. Where a party is represented, the legal representative must in addition serve an estimate on the party he represents.

(2) Where a party is required to file and serve a new estimate of costs in accordance with Rule 44.15(3), if that party is represented the legal representative must in addition serve the new estimate on the party he represents.

(3) This paragraph does not apply to litigants in person.

6.5 An estimate of costs should be substantially in the form illustrated in Precedent H in the Schedule of Costs Precedents annexed to the Practice Direction.

6.5A(1) If there is a difference of 20% or more between the base costs claimed by a receiving party on detailed assessment and the costs

Chapter 48: Costs management

shown in an estimate of costs filed by that party, the receiving party must provide a statement of the reasons for the difference with his bill of costs.

(2) If a paying party –

(a) claims that he reasonably relied on an estimate of costs filed by a receiving party; or

(b) wishes to rely upon the costs shown in the estimate in order to dispute the reasonableness or proportionality of the costs claimed,

the paying party must serve a statement setting out his case in this regard in his points of dispute.

6.6 (1) On an assessment of the costs of a party, the court may have regard to any estimate previously filed by that party, or by any other party in the same proceedings. Such an estimate may be taken into account as a factor among others, when assessing the reasonableness and proportionality of any costs claimed.

(2) In particular, where –

(a) there is a difference of 20% or more between the base costs claimed by a receiving party and the costs shown in an estimate of costs filed by that party; and

(b) it appears to the court that –

(i) the receiving party has not provided a satisfactory explanation for that difference; or

(ii) the paying party reasonably relied on the estimate of costs;

the court may regard the difference between the costs claimed and the costs shown in the estimate as evidence that the costs claimed are unreasonable or disproportionate.”

2.12 CPD section 6, as now formulated, provides the clearest example of the notion of costs management within the CPR.239 In summary the court is given the power to costs manage by reference to the exchange of estimates of costs.

2.13 CPD section 6.3 anticipates the court receiving costs estimates at any stage and it assumes that the court will have regard to the estimate when making case management decisions. However, the CPD does not expressly entitle the court to limit the recoverable costs to the estimates provided or to set boundaries within which levels of costs may be incurred.240

2.14 CPD section 6.5A. Under CPD 6.5A the court is entitled, ex post facto, to require an explanation for a departure of 20% or more from an earlier estimate.

Where no such explanation is given or the paying party demonstrates that he reasonably relied on the estimate, then the court may regard the difference between

239 See also CPR rule 44.15(3) “ Where paragraph (2) applies, and a party has already filed (a) an allocation questionnaire, or (b) a pre-trial check list (listing questionnaire), he must file and serve a new estimate of costs with the notice”.

240 Chapter 45 examines the jurisdiction of costs capping.

Chapter 48: Costs management the costs claimed and the costs shown in the estimate as evidence that the costs are

unreasonable or disproportionate.

2.15 Form H. The requirement to serve an estimate of costs pursuant to section 6 of the CPD is a requirement to serve a document substantially in the form illustrated in Precedent H in the Schedule of Costs Precedents annexed to the CPD.

2.16 CPD and not CPR. The provisions about costs estimates and their relevance in relation to the assessment of costs appear in practice directions, and not in the rules themselves. In practice, scant attention is paid to those provisions during the course of case management hearings.241 It may be that consideration should now be given to:

(i) strengthening the costs management powers within CPD section 6;

(ii) elevating those provisions into the CPR; and

(iii) expressly using the term “costs management”, which currently does not feature in the CPR or the CPD.

2.17 Breakdown of costs estimate. The costs estimates provided by each party must in practice be based upon a detailed budget prepared by the solicitors.242 It is therefore proposed that the rules should require a more detailed breakdown of costs to be filed, rather than a bare statement of the total sum. I first canvassed this proposal at the Mercantile judges’ conference on 27th February 2009, where the proposal was unanimously supported.

2.18 Having reviewed the jurisdiction I now turn to consider what costs management entails.

In document Review of Civil Litigation Costs: Preliminary Report (Page 114-119)