Page 23 - PIC Magazine Autumn Issue 16

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development and variation isn’t sought is open to debate and will likely be a hot topic over the next few years. Certainly, parties should not trust to the benevolence of the Court on assessment but ensure that the new CPR 3.15A is complied with and promptly seek to agree variations in budgets where there has been a significant development.
Attention should be paid to the various sub-provisions of CPR 3.15A and the direction of travel therein, requiring the parties to first seek
to agree variation between them before then involving the Court. Notably, in all instances (whether the variation is agreed between
the parties or not), the details of
the variation sought and particulars of any differences between the parties (if any) need ultimately to be submitted to the Court, and it would appear that the Court may deny
the variation even if it is agreed by the parties; it is not until the Court has approved the changes that the budget is actually varied.
Importantly, the rules now make clear that variation of budgets is confined to the costs associated with whatever is said to constitute
a significant development, and is not an invitation to amend a budget wholesale.
Accompanying these changes is a new Precedent T to be used where a party seeks variation of its budget, and which itself must contain a
new form of certification providing that the costs and disbursements included in the variation have not been included in any previous budget. The extent to which that assertion is literally correct where
a party seeks to reduce its budget
is debateable, but is nevertheless required in all matters where a party seeks variation.
Attendant upon these changes are practical and tactical considerations. Practitioners need to be keenly aware of the basis on which their budget has been agreed or set by the Court and alert to any matter
or change in the litigation that falls outside that premise. Most parties will likely want their budget to be as generous as possible and to contain
Importantly, the rules now make clear that variation of budgets
is confined to the costs associated with whatever is said to constitute a significant development, and
is not an invitation to amend a budget wholesale.
sufficient provision for all work
they need to do, so to the extent that there are grounds to assert significant development, the merits should be weighed and variation sought as appropriate.
Equally however, the rules provide for parties to vary budgets downwards when developments warrant that revision. It may seem counter-intuitive to seek to reduce your own budget, but a failure to seek downward variation of your budget when some substantial aspect of the case has fallen away, may give the Court good reason to depart from the budget on detailed assessment, potentially reducing the bill in a very rough and ready manner, and so whatever benefits you derive from that existing, unadjusted budget, may disappear.
It should also be borne in mind that your opponent may have rather more desire to reduce your budget, even if it requires reduction to
their own, and so if overtures are made for both parties to reduce their budgets when the need for some feature of costs in the claim falls away, they should be engaged with; the route for a party to have the Court reduce their opponent’s budget where they refuse to cooperate in varying budgets is likely an application to enforce compliance with CPR 3.15A, with consequent adverse costs risk.
Simplification of the budgeting rules and formalisation of the procedure for variation are welcome; unlike lots of changes this year, these are for the better.
www.pic.legal Autumn 2020
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