Tips for practitioners from DJ Besford, NE Circuit, sitting predominately in Hull and Ken Corness, Costs Lawyer with over 30 years experience, as told to the Association of Costs Lawyers Annual Conference on 24 October 2014.
The LexisNexis Dispute Resolution team attended and live tweeted DJ Besford and Ken Corness’s session on Costs Budgeting in Practice for those that could not attend.
Tips and observations from Ken Corness:
- There are some problems with guideline hourly rates – some judges engage with them at costs budget phase, some leave to detailed assessment
- Completing Precedent H:
- Pre-action costs may well involve instructing experts so these should be placed in the ‘incurred’ phase
- Disbursements can cause issues eg experts could be included in different phases eg expert report phase and trial
- Assumptions: need to adopt a middle ground, make it clear but not overly detailed
- Contingencies – there have been interesting ones such as contingency in case expert dies before trial! In general though, these have settled down and parties are being more sensible
- Be careful on claiming costs for dealing with costs budgets. Put in 1 phase rather than spread across different phases
- There is still difficulty with disentangling costs in bills so they match up to the costs budget. He predicts this will be easier when j-codes come in.
Tips and observations from DJ Besford:
- He is often asked about percentages – what is it actually referenced to? Is it only on future costs or all costs? Sadly he as yest has no definitive answer.
- As a judge he is principally concerned with the front sheet of Precedent H – interestingly, he says that he does not look at much of the rest.
- There is a clear difference of opinions on time for budgeting exercise. Difficult to know what a judge will do as some are listing for excessive times; but important to remember it is not a detailed assessment.
- Hearing is usually 90 mins. In Hull – standard 2 party case is 90 mins. 30 mins added for additional parties
- He asks advocates: what are the issues, which are in dispute, what is the value of the claim? – so be prepared.
- He may ask what is a proportionate approach to the costs on the case.
- Parties need to have an idea of what is a proportionate figure is to mold directions to bring within the case within that figure
- Judges regularly dealing with clinical negligence cases use more discretion. There is a broad band of discretion
- He will give a figure of X as being a reasonable and proportionate figure to carry out a phase. Total phases must be proportionate.
- Do not think that judges have all the answers to dealing with proportionality. Still waiting for satellite litigation on this.
- Revisions to costs budgets need to be addressed urgently. However, the PD is silent on how to do this – paper or application?