It has been some time since the electronic bill of costs has been compulsory and those that have been prepared this way are beginning to surface at court. Although I have not personally had the pleasure of testing one yet, I did have an interesting opening point in Oxford County Court recently and I have heard many stories from costs lawyers, costs counsel and the judiciary.
At my hearing in Oxford, the tail end of my client’s paper bill (that included all the costs claimed) was replicated in an electronic bill (for the last handful of entries alone). The paying party’s point of dispute was to complain about the obvious duplication of effort. Thankfully, the pragmatic judge accepted the proposition of dealing with the paper bill throughout the assessment (that is, the electronic element of the bill was effectively ignored). He also dismissed the point of dispute in circumstances where my client was obliged to serve and file the latter costs in electronic format and, even if agreement had been reached between the parties, my client would have been in breach of the rules if that had not been done. No doubt the paying party would have raised such a point had no (part) electronic bill been prepared and, I suspect, they would have had more of a point. As perverse as this sounds, my view is that there would have been strong grounds for the latter costs to be disallowed entirely; this would have been far more serious than a minor duplication point which is only likely to have an impact on a proportion of the bill drafting fees at worst.
Further issues have arisen, I am told, both in court and in training at conferences where mock assessments have been attempted with the electronic bill. It is a waste of time to take the first few hours of a hearing setting up, and effectively training the court and parties, on how to operate the electronic bill. The panel session at the ACL conference, featuring costs judges and including the senior costs judge, was quizzed on the best approach to take in order to avoid such issues. The panel came to the conclusion that the best way to present electronic costs claims is to bring in multiple laptops with the bill pre-loaded. Certainly the receiving party should be encouraged to do this for themselves and the court, but I am not clear if providing your opponent with the same is intended. This approach does give the certainty that the same document is being used and that it is immediately accessible.
The electronic bill on the provided hardware (or provided to the court by other means) should also be tested before the hearing. Broken formulae or wrong data can be embarrassing and time consuming. In extreme circumstances, these could lead to adjournments with costs consequences (and possible significant delays if the costs judge has a full diary).
Whilst thinking about how best to summarise my experience of the electronic bill when preparing to write this blog, I happened to be walking my nine year old black lab, Jack, when a fellow dog walker commented on how well he looked, asking me if I “worked” him. On replying in the negative, I was further asked, jokingly, if he was “no good”. Despite being a bit of a whiner, my honest answer was that I had begun to train him, with an experienced handler, and that he was actually a very good working dog but it was me that was “no good”. It took quite a few sessions for me to realise that Jack was always more than capable and that the trainer was more focussed on my ineptitude at handling him properly. He remains simply a much loved family pet whose owner has failed him in relation to his full potential.
It has been said on the introduction of the electronic bill, and on concerns over the cost of preparing the same prior to its compulsory introduction, that it was considered likely that familiarity would accelerate the process. I suspect that the same can be said of taking one into court for assessment. Having prepared electronic bills for some time now, they are easier than the paper bill in a lot of ways. However, the layers of coding now required remain more time consuming. In time, preparing and assessing electronic bills will become second nature.
However clumsy the comparison, my overall point is that, like my dog, the electronic bill is far more efficient and useful a tool than most realised. The available analytics alone make the paper bill look like the “Victorian Account Book”, as Jackson described it.
I very much anticipate that analysing the electronic bill will have significant improvements for time and that it will become second nature to those regularly exposed to its use. Although a lot of work has gone into the electronic bill template in its various guises (Precedent S, ACL version or other), its capabilities are, in my opinion, not yet fully understood. As its use increases, we will improve our understanding of that potential, much like a new dog owner, and find ever efficient ways of analysing and presenting the data it contains.
I doubt that solicitors will attempt to deal with this product themselves. Those that do, certainly on an irregular basis, will quickly begin to fall behind the curve on its capability. As a result, for those of us who regularly deal with this new product, exciting times lie ahead. As a result, I look forward to some interesting adaptations in points of dispute and approaches to debate on assessment.
Our PR agency at ACL is in the process of organising a round table, featuring the great and good, to discuss both the impact of and vision for the use of electronics at court, with a view to producing a white paper on the subject. I anticipate that this will be a far more informative read but thank the reader of this blog for their indulgence in the interim.
Francis Kendall is a costs lawyer, Director at Kain Knight (City) and current Vice Chairman of the Association of Costs Lawyers.
