Costs – the professor meets the practitioners
“Accustomed as I am to speaking (200 times a year since 1989) it was a novel experience to do a double act with Rob. It was an education too! I monitored the successful Birmingham pilot scheme run by HH Judge Simon Brown QC and have devoured every judgment published to date on the subject. But Rob is a consummate expert on the skills and tactics of preparing a viable budget.
Where I and the audience benefited was by hearing of what is going on at the frontline; first-hand experience is invaluable. Hearing about it is the next best thing. Even seemingly arcane points put flesh upon the skeleton.”
“For instance, the fact that the courts have had more than one stab at producing a coherent notice dictating when to file a budget!”
“Our session also discussed some of the underlying tensions in the rules which will undoubtedly emerge over the next few years as the first cases subject to costs management go forward to detailed assessment.
One of these is the relationship between Practice Direction 3E 7.3 which says that the Court undertaking costs management will not conduct a detailed assessment in advance and CPR 3.18(b) which says that where a costs management order has been made, the Court making a detailed assessment on the standard basis will not depart from the receiving party’s last approved or agreed budget without good reason.”
“That becomes a problem when Judges dealing with the budgeting exercise are, as very strong anecdotal evidence suggests, making swingeing and arbitrary reductions, or even applying damages-based formulae, without hearing proper argument and which then bind the Judge at detailed assessment unless the receiving party can show good reason".
"The truth is that the quality of some judicial training has been uneven and some members of the Bench complain that what they did receive was rushed, training having been compressed into just half a day. I was troubled recently when Sir Rupert Jackson at the Costs Law Reports conference floated the idea of fixed costs in cases worth up to £250,000. This would, as he observed, remove budgeting from those cases".
“Costs tariffs are always likely to be blunt instruments. Budgeting is the answer. The process is still very much in its infancy and undoubtedly there are kinks to be ironed out but the preservation and refinement of costs management is the way forward.
Practitioners, as was reiterated in the discussion with Thomson Snell and Passmore colleagues, benefit from the discipline of careful case planning; in modern litigation it is no longer enough to start the meter running and hope for the best. It is also enormously helpful to have an insight into what the costs exposure is".
“It was admirable that the team at Thomson Snell & Passmore came in early to get as much as they could out of our session. Their response was lively and highly engaged, with both of us fielding questions during as well as after the presentation. Rob and I bring different but complementary perspectives to the difficulties faced by those who are at the sharp end every day.
All the feedback we received suggests that there is no lack of hunger for knowledge, insight and practical guidance on this topic. I look forward to joining Rob and the Burcher Jennings team for the next stop in our rock and roll tour of law firms!”
And what did the Thomson Snell and Passmore (TSP) participants make of the session with the two experts?
Fiona Mills, TSP Partner and Head of Clinical Negligence and Personal Injury:
“I thought it was excellent. It is always very useful to set our own experiences and thoughts in a wider context. Very worthwhile.”
Roland Millar, TSP Head of Finance
“It was particularly beneficial to have the opportunity to pose questions directly to two different, but equally expert, perspectives on the same topics.”