Page 23 - PIC Magazine Spring Issue 15
P. 23

 Whilst noting that per Elvanite
Full Circle Ltd – v – Amec Earth and Environmental (UK) Ltd [2013] EWHC 1643 (TCC), parties should begin taking steps to obtain a revised budget by agreement or approval as soon as it becomes apparent that their budget is
likely to be exceeded by more
than a minimal amount (helpfully referenced in the White Book (again at 3.15.4) for the benefit of any judge wishing to take against your application for a lack of perceived timeliness), that may not be pragmatic; surely, whilst a likely overspend should give you pause for thought to consider seeking
to vary your budget, before determining to do so, you may well first want to assess the likelihood of your opposing party or the Court agreeing that some element of your predicament is as a result
of a significant development.
The Court’s discretion as to budget variation is after all fettered by
the provisions of paragraph 7.6
of PD 3E, such that the Court
may approve, vary or disapprove revisions to budgets ‘having regard to any significant developments which have occurred since the
date when the previous budget was approved or agreed.’
Per Sharp and Al-Najar, inadequacy in an existing budget by reason of mistake in its preparation such that matters which should have been anticipated were not, is unlikely to permit the Court to revise it.
It is against that backdrop that the CPRC has been considering potential revision of CPR 3.15 (stemming from the extent to which the Court effectively budgets aspects of incurred costs where work has already been done in relation to matters that are the subject of revision of a budget, per Sharp), a new Precedent T setting out the particulars of a proposed budget variation, and a Budget Variation Notice, intended to form a new preliminary step in the process.
The costs sub-committee are to submit revised proposals which cater
for ‘retrospective costs budgeting’ in the context of budget variation. The proposed Budget Variation Notice is parked for the time being, in order to allow proposed changes to the budgeting rules (which we await with bated breath until the minutes of the
February 2020 meeting are published) to bed-in. Precedent T is agreed in principle and should be an important step forward in codifying the procedure of budget variation, the committee noting the varied practices adopted by parties.
A new precedent, presumably incorporating
at least ‘a
note of the
changes made
and the reasons for
those changes’, will likely be welcomed by all currently having to battle through a
jumble of documents old and
new when seeking to engage
with proposed variations.
As the great man said, ‘it’s been a long, long time coming’.
Spring 2020
What though of procedural requirements? Per paragraph 7.6 of PD
3E ‘[s]uch amended budgets shall be submitted to the other parties for agreement. In default of agreement, the amended budgets shall be submitted to the court, together with a note of: the changes made and the reasons for those changes and the objections of any other party.’ DYR (By Litigation Friend DYS) – v – (1) EZT & (2) EUI Ltd (2018) QBD, a decision of Master Yoxall, is indicative of the importance of recognizing the direction of travel in that provision; if the amended budget is not submitted first to the Defendant before it is submitted to the Court, it may be found that the Court is without jurisdiction to indulge the request.

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