Still buts in Jackson’s costs rejig

Assessing costs is one focus of the Jackson reforms, but some of his adjustments just don’t stack up

Iain Stark, chairman, Association of Costs Lawyers
Iain Stark, chairman, Association of Costs Lawyers

While the headline Jackson reforms continue their progress through ­Parliament, the Rule Committee has been working on changes to the Civil Procedure Rules that will introduce some of the judge’s less controversial recommendations. But they are no less significant for that.

Sir Rupert Jackson has been giving a series of lectures on his reforms, the most recent of which deals with the assessment of costs. The changes will affect litigation cases of all sizes, but they are all being held in abeyance until April 2013.

While nobody can argue with the aim of improving the process of assessing costs, I am not convinced that everything Jackson has outlined recently will achieve that. Take, for example, the revised form N260, which is in essence designed for summary assessment at a fast-track trial. Not for the first time, those who will have to complete the form have not been consulted about what should go on it.

The form simply reflects the current regime with a schedule attached for more detail to be provided on documents. Why does it not, for example, provide for additional liabilities, having more than one counsel or VAT at differing rates? If a job is worth doing it is worth doing well. Any form should be capable of being updated, and as such it would benefit solicitors if the same form could be used at ­allocation, listing and for summary assessment. Indeed, with some thought, it could be used for the ­application of a payment on account at a multi-track trial.

Some of the changes to detailed ­assessment, although broadly ­positive, raise questions. Why should paying parties be forced to make an offer? There may be a number of ­reasons tactically why they do not wish to do this and simply proceed to a detailed assessment instead.

Other changes, such as a presumption in favour of the judge ordering an interim payment of costs, speak to the broader theme of costs management – a judge will surely need ­access to costs estimates.

After a successful trial in Birmingham there is now a nationwide costs management pilot in the Mercantile and Technology and Construction Courts, alongside a similar pilot in publications proceedings. The aim is for the judge to keep control of costs during the case by requiring regularly updated budgets/estimates.

This places the onus on solicitors, with the help of expert costs lawyers, to get their figures right from an early stage; no more fingers in the air or ­letting it all come out in the wash at the detailed assessment. In fact, if costs management works as it should, there should be far fewer ­detailed assessments anyway.

Looking at the longer term, the Association of Costs Lawyers has taken up Jackson’s challenge to design a modern and user-friendly format for the bill of costs. He has welcomed our interim report and we are developing an interim format for piloting.