On 28 September 2022, the Costs Law Reports (CLR) held its 10th annual Costs Conference. For the second year running, the Conference took place in the plush and modern Ashworth Centre at Lincoln’s Inn with over 100 delegates in attendance. Happily, the Conference was well received, with many feedback forms giving a clean sweep of “excellent” for the venue, the speakers and the topics chosen.
This is gratifying because it is not always obvious what goes on behind the scenes in order to ensure that a Conference runs smoothly. Possible eventualities which might never occur, nonetheless need to be anticipated: if it rains, will there be enough coat hangers for 100 raincoats? What happens if there is a rail strike: can the timings be adjusted? Then there are the predictable items. Are there enough name badges with everyone’s name spelt correctly? Have the Delegate packs arrived? Will the IT work?
Front of House challenges arise too, such as when a speaker cries off (for wholly understandable reasons) by e mail at 5.50am on the day, how can their speech be covered, or can the batting order be changed when a hearing has overrun causing both the judge and counsel involved to be running late? Thankfully, that is all in a day’s work for the Conference organisers, and if the feedback is anything to go by, these vicissitudes did not adversely affect anyone’s day, placated too, perhaps, by the excellent post Conference drinks in the Inn’s Middle Common Room, kindly hosted by the principal sponsors, Temple Garden Chambers.
What does all this have to do with the Law of Costs, it might be asked? The answer to that question is that events of this nature are essential if those who practise in this area are to keep up to date. Doing the work is hard enough, but keeping abreast of the latest developments in the law and the most recent costs judgments is vital and that is the reason why each year, the CLR gather a team of experts together to impart such information.
This year, the Conference was delighted to welcome Lady Justice Asplin DBE as Keynote speaker who entertained delegates with an illuminating and wide-ranging speech. Having delivered at least six key costs decisions as a puisne judge and also in the Court of Appeal, Dame Sarah was certainly fully qualified to talk about “How costs drive the Litigation ‘bus” as she put it. In this context, Dame Sarah mused about the impact of technology, how it can produce quick and cost-effective results, and that gone are the days when trolley loads of documents needed to be ferried down to court. Having been Chair of the Judicial and ADR Liaison Committee, she also observed that mediation has developed in a way that could not have been foreseen 5 years ago, and in mentioning hourly expense rates for solicitors, Dame Sarah reflected on the level of remote working, initially caused by the COVID-19 lockdown, but now becoming a part of working life in many legal practices. How or should working from home be taken into account when deciding hourly rates as the Court of Appeal was required to do in Athena Capital Fund v Secretary of State for the Holy See? Interesting question! Dame Sarah’s speech was certainly thought-provoking.
With over 100 costs judgments published by Costs Law Reports over the past year, no Conference could cover them all, but in so far as such cases were not going to be dealt with by other speakers, a joint presentation by Juliet Wells and James Laughland, both of Temple Garden Chambers, covered the key issues of when to use CPR Part 36 rather than making Calderbank offers (McKeown v Langer), exceeding guideline rates (Athena Capital), how not to draft a bill for detailed assessment (AKA v Barking, Havering & Redbridge University NHS Trust), how not to pay standard basis costs when you thought you had agreed to fixed costs (Doyle v M & D Foundations & Building Services Ltd) and how not to be subject to a wasted costs order (Hunt v Annolight Ltd).
With fixed costs firmly on the Ministry of Justice’s agenda with its pronouncement that a re-written Part 45 will implement such a regime for cases worth up to £100,000 from next April, the Conference was fortunate that Professor Dominic Regan was able to hold Sarah Lambert KC’s brief, so to speak, with regard to this important topic. As an absolute jack-of all-trades when it comes to costs, Dominic was able to provide reassurance that there will be no retrospective application of the new rule, and that there will be carve outs, for example for complex clinical negligence cases. That said, it is a case of “watch this space!”: no draft rules yet: only six months until April. Whatever is the rush!
Alluded to by Dominic in the context of costs budgeting, was a point made by Richard Wilkinson of Temple Garden Chambers, who spoke about the now decade old budgeting regime, introduced as a reform recommended by Sir Rupert Jackson and applying in Part 7 claims in the multi-track. If fixed costs come in at £100,000, up from £25,000, that, at a stroke will remove a swathe of actions which would otherwise be subject to budgeting under section II of CPR 3. In addition, Richard asked rhetorically, what is the point of having a defendant’s budget in matters to which qualified one-way costs shifting applies, when losing claimants pay no costs unless they have been fundamentally dishonest, or their actions have been struck out? In the “Wagatha Christie” libel litigation, what use was the costs budget, Mrs Vardy might have thought, when these were agreed at £1.3 million combined but reliable periodicals such as the Daily Mail put them at £2 – £3 million? In so far as the answers to those questions were left hanging in the air, the Conference Chairman (the author) issued a challenge to Richard to return to the next Conference on 27 September 2023 with the answers!
In terms of the number of reported costs cases over the past twelve months, the Conference was informed that those involving the Solicitors Act 1974 (the Act) had overtaken those published under Part 36. If that had upset the Part 36 guru, Dominic Regan, he did not show it, and instead took delegates on a canter through the latest judgments under this rule in his inimitable style.
For his reward for the Act topping the league table, Alexander Hutton KC had the dubious honour of being allocated an extra quarter of an hour to talk about it. In his opening remarks, the Chairman had scoffed at the retention of such confusing terms such as “interim on account bills”, “interim statute bills”, “Chamberlain bills”, “gross sum bills” and “bills containing detailed items”. However, in going through the extensive 2022 case law, Alex pointed out that the legal profession had done jolly well out of the Act over the years, and that long may it continue!
In an attempt to roast those old chestnuts which appear ubiquitously in Points of Dispute, retired Master, Peter Haworth, posed question and answer in addressing “Thorny issues at Detailed Assessment”. Must a receiving party disclose the retainer (answer: no), must the client be given a cancellation notice (answer: it depends), can the paying party see privileged documents referred to in the receiving party’s witness statement? (answer: no). Hopefully these types of challenge will now disappear.
Hot foot from doing battle before Master Jennifer James on day 3 of a detailed assessment, Nicholas Bacon KC explained to delegates how he had won Bott & Co v Ryan Air (all about the solicitor’s equitable lien) in the Supreme Court when the successful solicitors had only managed three judges on its side to the airline’s six (Answer: he secured the three who mattered: Lord Briggs, Lord Burrows and Lady Arden). After that, Master James explained how all things in the Court of Protection might be going electronic under a voluntary pilot scheme. Jennifer also highlighted the perils which can befall solicitors who fail to justify their costs when seeking to recover these from their client’s damages on a court approval of their charges: in extreme cases, the Solicitors Regulation Authority might become involved!
Breaking up the graveyard spot in the middle of the afternoon, Dick Warner, publisher extraordinaire of Costs Law Reports, gave his bravura performance, extolling, with full justification, the benefits of subscribing to Costs Law Reports. That left the Senior Costs Judge, Master Andrew Gordon-Saker to draw the Conference to a close with some thought-provoking suggestions for 2023:
- Breaking the link between case management and costs management by having the costs judge rather than the procedural judge set the budget and at the same time, to assess summarily, the costs incurred to date.
- Increasing the threshold for provisional assessments upwards from £75,000 where it has been since 2013.
- Not extending the electronic bill into other areas (this could be a follow up to an earlier talk in which he had said that if there was no costs budgeting, the electronic bill might no longer be needed).
With that, the tenth Costs Law Reports Conference closed, with many delegates repairing to the MCR bar where another sponsor, MA Financial Group had just erected its late arrival stand. Rotten luck about the delay, or a good way after a drink to promote your product perhaps? Whatever, this was a stimulating and informative Conference, and one thing is certain. Next year’s Conference will be as well, given the significant developments and changes which are envisaged over the next twelve month, as foreshadowed by the eminent cadre of speakers.
