Judiciary ‘buy in’ critical to new litigation costs scheme
success
28 September 2011
One of the lawyers involved in drafting the Practice Direction
designed to control the spiralling cost of litigation is calling on
lawyers and the judiciary to ‘buy’ into the scheme on the eve of
its extension to all Technology and Construction Courts (TCCs) and
the Mercantile Courts.
The pilot scheme has been implemented by Practice Direction 51G
and is being extended to all TCCs and the Mercantile Courts from 1
October 2011 until 30 September 2012, after a successful pilot was
run in the Birmingham TCC in 2009.
The scheme was introduced in the wake of Lord Justice Jackson's
civil litigation costs review in 2009.
Under the scheme litigants will have to file and exchange cost
budgets. Judges will then have the right to approve or disapprove
the costs budget.
If one parties costs increase significantly over time they will
have to explain to the court the reasons for the change.
Parties can also report the other party to the court if they
believe they are spending money disproportionately on costs.
Nichola Evans, a partner at law firm Browne Jacobson and a
member of the Working Party which drafted the new Practice
Direction, is hopeful that the changes will help control costs and
for parties in litigation to be given a realistic and commercial
view at an early stage of the litigation of precisely what costs
are anticipated at each stage of the claim:
“This is an innovative scheme which in time should make a major
contribution in controlling the costs of litigation.
“The onus will certainly be upon solicitors to properly project
manage their litigation and to provide the court with accurate
costs advice to allow the courts to make decisions as to how cases
ought to proceed.
“Whilst at first blush the spreadsheet could look daunting the
reality is that the cost information is what a solicitor is obliged
to give their own client in any event.
“Getting a budget wrong or not properly strategising a claim
could have major consequences for a client as well with the courts
becoming more interventionist and taking bold decisions on what
costs will be allowed.
“One can only hope that the judiciary buys fully into this
scheme to allow much more dynamic management of claims to ensure
that cases are dealt with as cost efficiently as possible. Who
knows - if this scheme is a success we may see the scheme extended
to other courts! ”