Page 22 - PIC Magazine Autumn Issue 16

CIVIL COSTS
Autumnal Changes
The seasons change, and with predictable regularity, so do the Civil Procedure Rules. Dominic Woodhouse, National Training Manager at PIC reports.
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ARTICLE
CPR 3 & PD 3E
With effect from the 1st October 2020, the Civil Procedure (Amendment No.
3) Rules 2020 and the 122nd Practice Direction Update implement changes
to CPR 3 and Practice Direction 3E intended to ‘rationalise’ the rules relating to costs management. From the
1st October, there will only be the provisions to be found within CPR
3 and PD 3E to contend with, the guidance note appended to PD 3E being removed and the substance of its provisions incorporated into the rules and practice direction.
Practice Direction 3E itself is removed and replaced entirely with a new version, but similarly to the excision of the guidance note, the change is less severe than that may imply, and overall the provisions relating to costs management remain largely the same as they were prior to amendment, with a few exceptions.
Firstly, specific direction is now made in paragraph 9 of PD 3E not to use the contingent costs phases in the precedent H for disputed costs, for instance costs relating
to medical evidence sought by
an opponent the need for
which is contested but
which nevertheless must
be provided for within the
budget should the Court permit it. Instead such costs must be included in their natural phase, and where appropriate marked as disputed. Given the format of precedent H, the nature and extent of disputed costs within any phase will likely need to be explained in the assumptions;
a colour-coded approach will fall down with black and white copies.
A provision enabling parties to apply to the Court if they consider that the opposing party
is behaving oppressively and causing them to spend money disproportionately has greater prominence now that it is transferred from the guidance note to paragraph 13 of PD 3E. It is certainly not a power to be overlooked; parties can obtain some ‘change’ in the budget only if they obtain variation of it following a significant development, or if they can show good reason to depart on detailed assessment, and the ability to seek relief where the opponent’s behavior is impacting on the budget could be key to the effective working of the costs management rules.
Most significant is the introduction of a new CPR 3.15A, which includes in substance provisions previously found in the practice direction, but
in transfer emphasises their mandatory nature, such that parties ‘must’ revise their budgets
upwards or downwards if
significant developments in the litigation warrant
it. The extent to which the Court’s discretion to depart
from the budget on assessment for good reason is fettered
if there has been a significant
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