Case Management Refresher

Cost estimates are necessary for fast track claims when the fixed costs regime is not applicable and for non-budgeted cases

In accordance with CPR 28 PD6.1 (4), a cost estimate is required to be filed and served at the same time as the pre-trial check list.  It is stated on the pre-trial checklist (N170) that ‘for legal representatives only: a cost estimate to be filed and served at the same time as the pre-trial check list is filed‘.  Therefore, for all fast track claims where there is not a fixed costs regime in place then a costs estimates should be filed. Furthermore, for non-budgeted multitrack claims a costs estimate should be filed.  What is particularly interesting is that this captures those claims that are not automatically included in the costs management regime, e.g. claims over £10m.

Case management conferences and indemnity basis costs

In accordance with CPR 26 PD 6.6, the court can impose a costs sanction where a party has failed to file a directions questionnaire or failed to provide further information which the court has ordered.  The court will usually order a party to pay on the indemnity basis the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and order them to be paid forthwith or within a stated period.

Disposal hearings

In accordance with CPR 26 PD 12.5(2), Section VI of Part 45 (fast track trial costs) will not apply to a case dealt with at a disposal hearing whatever the financial value of the claim. So, the costs of a disposal hearing will be in the discretion of the court.

Any questions? Please contact Sue at sue.fox@clarionsolicitors.com or call  on 0113 336 3389

Case Management in the Court of Protection

A case management pilot scheme will commence in June 2016. In light of this a pilot Practice Direction has been published in order to allow for practitioners to prepare for the changes ahead.

The Pilot Practice Direction will place an obligation on all applicants to provide improved analysis of any issues at the start of a case which in turn will lead to more vigorous decisions being made against all the issues that could be identified at the earliest opportunity. It is hoped that this will help to encourage cases to be resolved within the early stages and also reduce lengthy hearings in contested cases. The length of the pilot is expected to run for up to 12 months.

The pilot scheme sets out three case management pathways for CoP proceedings:

  1. a Property and Affairs pathway,
  2. a Health and Welfare pathway, and
  3. a hybrid pathway for cases that have elements of both Property and Health.

Please note that there could be possible amendments to the draft before the pilot actually commences in order to take account of any observations made on it or for other reasons.

An interesting point to consider is that the Courts may direct any party to file and serve an estimate of costs pursuant to Practice Direction 3.1 (l) of the case management pilot scheme, supplementing the Court of Protection Rules 2007.

If you require any further information please contact the COP costs team on 0113 246 0622 or email copcosts@clarionsolicitors.com.

 

Should the courts be able to interfere with Costs Budgets which have been agreed between the parties?

The rules state that the court will ‘record the extent to which the budgets are agreed between the parties’. Many of us have experienced the court’s refusal to approve those negotiated budgets and have been infuriated with their insistence on interfering with the budget. LJ Jackson, in his draft report, initially wanted the court to be able to alter agreed budgets, however the final report included the provision that the court ‘will record the extent to which the budgets are agreed’.

Lawyers should proceed with caution when attending a CMC where the budgets have been agreed. The sensible approach would be to assume that, once the budget has been agreed, then the budget can be ignored. Alas, this is not the case! The courts are indeed interfering with the budgets, clearly parties are surprised by this approach. I would advise that parties continue to undertake some preparatory work regarding the budget, albeit not to the same extent as would have been required if the costs were contested.

An interesting technical point – if the budgets have been agreed, are they technically ever approved? Note the reference in the CPR to ‘record’ rather than ‘approve’. More to ‘chew the fat’ over some mince pies; or ‘mull over’ some mulled wine.

If you have any questions or queries in relation this blog please contact Sue Fox (sue.fox@clarionsolicitors.com and 0113 3363389) or the Clarion Costs Team on 0113 2460622.

Incurred Costs – Shifting Change

LJ Jackson has recognised there are problems surrounding incurred costs. As predicted by many, he is concerned that some parties will undertake as much work as possible before the case management conference, thereby putting large swathes of costs outside of the reach of costs budgeting. This tactic of “front loading” goes against the very essence of what costs budgeting stands for.  LJ Jackson in his lecture earlier this year referred to incurred costs, stating that “a residual power to set a global figure for both incurred and future costs for any phase is to be introduced”.

His suggested solutions are sensible ones – (1) the court should have the power to comment on the incurred costs and to summarily assess those costs at the case management conference, if necessary; or alternatively (2) the court should be able to set a global figure for any phase, to include both incurred and future costs. This would be a welcome development in the task of controlling costs via the costs budgeting regime. The clear benefit to parties is that at the conclusion of the case where costs have fallen within limits of the budget, then parties may start to experience their costs being allowed in full, including the incurred costs. At present, when a party has actively managed their case effectively and efficiently, the incurred costs continue to be subject to either detailed assessment or summary assessment. LJ Jackson’s proposal would avoid this expensive and costly assessment process.

If this proposal was to be encompassed into any future revisions to the rules, then the parties to the litigation would begin to encounter some additional benefits. LJ Jackson has also suggested an introduction of pre-action costs management principally for clinical negligence costs. It appears there is a shift towards applying more focus to the issue of incurred costs in the future.

LJ Jackson’s proposal to change the position regarding incurred costs is one of the many steps needed to make costs management work.

If you have any questions or queries in relation this blog please contact Sue Fox (sue.fox@clarionsolicitors.com and 0113 3363389) or the Clarion Costs Team on 0113 2460622.