Courts put costs in the spotlight

The recent decision of Senior Costs Judge Hurst in Henry v News Group Newspapers Ltd is the first reported example of the risks parties and their solicitors face if they ignore the new rules on costs management.

The decision arises under practice direction 51D (PD 51D), the pilot scheme operating in defamation cases, but the issues considered apply equally to a similar pilot operating in the Mercantile and Technology and Construction courts.

The pilot schemes have led to new rules that have been passed by the Civil Procedure Rules Committee and are being held in escrow until April 2013. From that time, the

only cases that will be exempt from the costs reforms will be those proceeding in the Admiralty and Commercial courts, although the court may apply them to such cases in its discretion.

In his decision Hurst noted that PD 51D is in mandatory terms. Each party must prepare a costs budget and keep its budget updated. Solicitors must liaise monthly to check that budgets are not being, or are not likely to be, exceeded.

In this case, the claimant had exceeded her budget for disclosure by £76,306 and for witness statements by £216,404. The claimant’s solicitor largely ignored the provisions of PD 51D by failing to inform the defendant that the budget was being ­exceeded and to seek the court’s ­approval. This was despite prompting by the defendant’s solicitor, who sought to discuss the budgets prior to the case management conference (CMC).

While the defendant also exceeded its budget, the claimant’s solicitors were informed of this and provided with a revised budget, which the defendant sought to have approved at a further CMC.

The claimant’s failure to comply led the court to conclude there was no good reason to depart from her approved budget. The additional costs are, therefore, irrecoverable from the defendant and will need to be paid by the claimant (or potentially borne by the claimant’s solicitors if the failure to comply with PD 51D amounts to negligence), despite the defendant having agreed to settle the claim on favourable terms.

Hurst said he came to this ­decision reluctantly since he had no doubt that if there was a detailed ­assessment the claimant would be able to argue strongly that the additional costs were reasonable. The ­additional costs appear to have been incurred as a result of the defendant mounting what was said to be a “vigorous and lengthy defence which was amended four times” and who also served numerous supplementary lists of documents. Such comments are unlikely to be of much comfort to the claimant, although she has been given permission to appeal.

All parties will recognise the difficulty of providing a robust and accurate costs estimate for a case at the outset. The problems include those that arose in this case – the need to anticipate the likely course of the ­dispute and to make provision for contingencies to cover unknown ­issues that may arise.

This decision makes it clear that solicitors need to grasp the nettle of such problems, and that they cannot afford to ignore the new costs management regime.