Page 8 - PIC Magazine Issue 21
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Sarah Prager KC, Deka Chambers
 The Consultation
Interestingly, when asked whether costs budgeting should be abandoned, the overwhelming majority of respondents to the consultation preceding the review thought that it should not. However, some thought that budgeting should not occur in cases valued at under £250,000, or £500,000, or over £500,000; some thought that the County Court should not budget; and others felt that multi-claimant cases were not suitable for budgeting. Understandably, a number of people representing defendants
in personal injury claims felt that budgeting defendants’ costs in QOCS cases was something of a waste of time, given that those costs are unlikely ever to be recoverable. This gave rise to a majority recommendation (para.1.17):
In cases where QOCS applies, particularly in clinical negligence cases involving NHSR, the Working Group recommends that full budgets are dispensed with for defendants but the Precedent H front sheet only is supplied to the claimant and the court. This would be subject to the court having the power to direct the defendant to produce a full budget. This proposal should be piloted.
      TO BUDGET
OR NOT TO BUDGET?
   The Arguments for and against Costs Budgeting at an Early Stage in Proceedings
 n May 2023 the Civil Justice Council published its Costs Review setting out its recommended alterations to the rules governing costs in respect of claims issued in the courts of England and Wales. In summary,
as regards costs budgeting the Review found (para.vii, Executive Summary) that:
Costs budgeting has proved itself to be useful. It has brought consideration of the costs of litigation into the heart of the litigation process. That is a significant and valuable shift. It should be retained. Nevertheless, the diversity of civil justice comes into play the moment one suggests that costs budgeting be retained. Characterised as “one size does not fit all” is the clear recommendation that in future the details of the way costs budgeting should work ought to be allowed to vary as between different areas of civil justice. This is a significant break from the past, in which the scheme was presented as a single approach which had to operate in the same way for all cases (with limited exceptions at the upper and lower value level).
Uncoupling Directions and Costs
More generally, the Council felt that ‘it is time to suggest a fresh, and more nuanced approach, to budgeting’ (para.1.14); its fundamental recommendation as regards budgeting was that (para.1.15):
Costs budgeting should be retained, however coupled with its retention should be acceptance of the hypothesis that “one size does not necessarily fit all”. We suggest that it should be possible to permit a more tailored approach to costs management,
to suit different work types and/or venues where the litigation is conducted.
In furtherance of this (para.1.18):
The group recommends that a tailored approach specific for Part 7 cases in the multi-track valued up to £1M is adopted, with a pilot first. This will mostly relate to cases between £100,000 and £1M (because £100,000 is the new Fixed Recoverable Costs threshold which is being implemented in October 2023 for many but not all civil claims). It is thought that these cases are at greatest risk of incurring disproportionate cost, but are not so high in value that full scale budgeting, as we currently know it, needs to apply. In essence the pilot would test the benefit of a “costs budget light” proposal in terms of saving both court
time and the parties money. A question is whether this approach could or should be applied only in the County Court or in the High Court, particularly District Registries.
A majority supports the inclusion of PI claims in this approach but that is not unanimous.
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