Every year the Association of Costs Lawyers undertakes a survey of members. This year we received 126 responses, which amounts to more than a fifth of our membership.
Successful costs management depends on the judge
Given a range of answers to the question of how the costs management regime was working, the largest number opted for “It depends on which judge you’re before”. I would like to think that this has changed over the years that we have been polling our members, but it hasn’t.
Costs management is now in its third year and has at times shown its value; however, judicial inconsistency and some solicitors continuing not to pay heed to the rules, particularly around updating budgets, means that it has not yet achieved what it was supposed to.
The reality is that some judges, understandably when faced with full lists, remain unenthusiastic about budgeting, especially when there has been no clear guidance from the Court of Appeal. But it must be in the interest of the wider legal profession to make costs management work when faced with the uncertainty of change and other proposed reforms.
Potential for future change
It may be that Lord Justice Briggs’ review of the structure of the civil courts will spark some change. Speaking at an ACL event recently, he indicated that if his vision of a small number of large court business centres became reality, the concentration of work could provide the option of having larger teams and more specialisation. In principle, this could include costs specialist case officers, he said.
District judge Chris Lethem, a member of Briggs LJ’s core “hard working group”, was also present and suggested that in this scenario there might also be three or four regional costs judges co-located, meaning there would be a better chance of parties having costs cases dealt with by specialist judges, almost like regional SCCOs. Hopefully such resources could be used to improve the budgeting process.
For costs lawyers, frankly, budgeting has been good news. Respondents to our survey recognised that it has brought their skills to the fore, especially as their experience is that while solicitors may think they can handle budgeting, few actually have the skills to do so. It only takes one expensive mistake to start rethinking your approach.
Experience of the new format bill of costs
Another significant issue facing those working in costs is the new format bill of costs and the adoption of recording time by phase, task and activity. While the ACL sees the value of this initiative, it is fair to record that views are mixed among members. But at this stage, the success of an electronic bill adopting phase, task and activity is dependent on solicitors embracing change; a third of respondents agreed that however good the new bill was, “solicitors aren’t interested”. Further, they said the courts would also have to take a hard line to make it work.
In a speech earlier this year, Lord Justice Jackson acknowledged that there was a “state of deadlock” around the new bill; his solution was to mandate its use, perhaps from October 2017, but that solicitors would not need to populate it using J-Codes, the benefits of which many are still to be convinced (although Jackson LJ thinks solicitors would be better off if they used them).
Current environment remains positive
While these issues remain live, the day-to-day work of costs goes on and the survey showed that, for most, the current environment is a good one, with 64% either maintaining or increasing work levels from the previous year. Notably, 11% of costs lawyers said they had taken on more advocacy, while in-house costs roles at law firms were seen as offering the best job security.
Costs remains a busy place to work, but there is a lot to do to ensure it works well and in the interests of both clients and lawyers alike. We see costs lawyers as playing a pivotal role in costs management and the new bill, and I intend to make sure the ACL is front and centre of the debates on their future.
Iain Stark is also a partner at Weightmans.
