Open meeting of the Civil Procedure Rules Committee 2021 – Costs update

The CPRC annual open meeting took place today via Teams following last year’s successful online meeting. One of the benefits of the past year’s enforced remote working has been the ease of access to forums such as this. Hopefully as we come out of restrictions, we will be able to retain some of the positive changes alongside enjoying some face to face time.

The lessons of the past 14 months were covered by the Master of the Rolls, The Rt. Hon. Sir Geoffrey Vos, who discussed the need to be ambitious in delivering access to justice online and the real opportunities to improve. A lot has been learned in respect of video hearings and PDF bundles which has been great for the system. There will, of course, be instances where in person hearings are preferable but it is likely that shorter hearings will be able to continue to be dealt with remotely. The senior Judiciary will be taking the time to look at the matter carefully.

The following costs matters were discussed and the full minutes will likely be published in June:

Vulnerable parties – Last year changes were made to the overriding objective together with the introduction of PD1A in respect of vulnerable parties. Since then, as anticipated, the Domestic Abuse Act has received royal assent. Sections 64 and 66 require amendments to the CPR to make provision for special measures where a party is a victim or likely victim of domestic abuse. Sections 64 and 66 come into force in April 2022 and the committee has therefore embarked that work. The paper and drafts are due to come before the committee at July meeting.

Aldred -v- Cham [2019] EWCA Civ 1780  – The costs subcommittee has considered the issues rising from Aldred in respect of CPR 45.29I which covers recoverable disbursements in matters which no longer continue under the specified pre-action protocols. The rule includes a wrap up provision allowing for “any other disbursement reasonably incurred due to a particular feature of the dispute”. This provision was not wide enough according to the Court of Appeal and the Supreme Court panel said that the CPRC should consider the issue even though permission to appeal was refused. The key areas of concern were the fee for Counsel’s opinion where the Claimant is a minor (as required by CPR 21) and interpreter costs. In both cases the costs arose due to a characteristic of the Claimant rather than the dispute. The subcommittee’s proposed solution was to add those two specific instances to the list and to expand the wrap up provision to include any other disbursement which is required by the rules to be incurred. This was agreed and further discussion will take place off-line regarding other issues raised such as the costs of telephone conference fees.

Summary Assessment of Costs Pilot (PD51X) – The pilot was introduced in April 2020 to run to April 2021, however, following the pilot it was noted that uptake had been limited. It was therefore decided that the pilot would be extended for another year. It was generally agreed that whether parties are to file the old or new forms, they should be self calculating so that the judge can make changes. In respect of the N260A interim application pilot form, a concern is that a large amount of detail is required for simple hearings lasting maybe half an hour. In respect of the N260B for trial, it was noted that these may be fast track cases which are not budgeted and therefore practitioners are possibly not recording time in a compatible way. Possible fixed costs changes would also have an impact. There will be further informal consultation and a smart survey via the website is being considered to give feedback.

Costs consequences of late acceptance of Part 36 offers – The Lacuna committee has considered the issue arising from various recent cases including Pallett v MGN Ltd [2021] EWHC 76 (Ch) in respect of the tactical late acceptance of Part 36 offers by Defendants in order to avoid the automatic costs entitlement. The issue will be taken up by the costs subcommittee.

Form N170 & Costs – A question was raised regarding Form N170 (Listing questionnaire (Pre-trial checklist)) querying the requirement in section F that the parties must attach ‘an estimate of costs’  as this reference relates to the pre-April 2013 CPR costs regime and the old Practice Direction. The Forms subcommittee will look to amend this.  

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