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Costs Law Reports Conference, 25 September 2019: conference cool down

Chairing a conference has lots of challenges, a number of which can be lost on delegates who attend only for the hours set out in the programme. The timetable tends to follow a set formula: coffee and light breakfast on arrival, an introduction by whoever is chairing the conference to cover housekeeping (no fire drill is planned so if it goes off, it’s for real, mobile phones on silent please, questions at the end, don’t forget to fill in your feedback forms for CPD points and do come back next year), followed by a welcome for the keynote speaker. Thereafter, the conference progresses using the tried and tested formula: speeches, panel session, coffee, speeches, questions, lunch, speeches, panel session, questions, round-up from the chair, run for the train, or take refuge in the pub to reflect on how rewarding the day has or has not been.

Backstage, however, it is very different. The day’s events do not start at 9.00 am and conclude at 5.00 pm; the conclusion of one conference means that the planning for the next one must begin. Behind the scenes, thoughts turn to venue, topics, speakers, programme, sponsors and, of course, “the day”, which encompasses everything from making sure there are name badges; providing sufficient coat hangers; ensuring that the speakers arrive on the right day at the appointed hour; distributing the delegate packs (on which the ink will still be drying because the presentations arrived at the last minute); and checking that the PowerPoint works and that there are enough seats for everyone.

Looked at in that context, whilst the chairing of the conference is perhaps the high profile aspect since it confers a responsibility for starting and ending on time and for waving yellow and then red cards at speakers who exceed their allocated slots, the real credit goes to those in the back room whose task it is to “get the show on the road” without a glitch.

What on earth, those reading this blog might ask, has this to do with the law or indeed the law of costs? The answer is that for those who practise in a specialised area such as costs, the attendance at a conference, such as the one I have just chaired for Costs Law Reports, is an essential adjunct to their work. A practitioner who is not up to date in their field is riding for a fall, not only for themselves but also for those on whose behalf they act. Indeed, the point has just been made by Nicola Davies LJ at the Expert Witness Annual Conference held on 26 September 2019 (albeit in the context of instructing an expert witness), about the dangers posed by those who are not up to date, yet profess to be experts and, in doing so, risk being seen as dinosaurs by the court. Such individuals “… will undermine the credibility of the expert in the eyes of the court”.

The annual Costs Law Reports Conference was held this year on 25 September, once again at the offices of Eversheds Sutherland. Over 150 costs specialists drawn from the Bar, firms of solicitors and costs lawyers gathered together to hear the latest costs developments. In doing so, the delegates were thereby doing their bit to rebut the very proposition that there could be anything dinosaurish about those who practise in this field, since the conference was able to boast speakers at the top of their game in the somewhat arcane world that is costs. Indeed, having chaired and heard all the speakers, I am confident that none of the concerns expressed by Her Ladyship could now realistically be levelled at those delegates who had spent their day at the conference, such was the quality of the speeches, their contents and deliveries.

The keynote speaker was Pepperall J. He recounted from first-hand experience the problems with Part 36 and the role he had in sorting these out when he was a member of the Civil Procedural Rule Committee sub-committee with responsibility for re-drafting the revised rule in 2014. That task had followed a glittering career at the Bar during which, in his early years in practice, discovery (as disclosure then was) ran to a mere handful of documents (reproduced by typists, not photocopiers). What a contrast with modern e-disclosure: in a case which he is now dealing with in the Commercial Court, over 3 million documents have been disclosed! How times have changed.

Other practices are different too, of course, and in fairness to the powers that be, attempts have and continue to be made to make litigation more manageable. Juliet Mills of Temple Garden Chambers (TGC) took delegates through the Capped Costs Pilot Scheme in the Business and Property Courts (B&PCs), running from 14 January 2019 to 13 January 2021. Lots of advantages: advance knowledge of what you are in for costs-wise, win or lose; no costs budgeting(!); expedited listing; and “docketing” to improve the quality of case management. Downside? A third of the time into the pilot and no one has used it! A word of caution here: that is what happened to the electronic bill pilot scheme. Unloved and unused for two and a half years, the Ministry of Justice simply imposed it with effect from 6 April 2018; a lesson, therefore, which users of the B&PCs might wish to bear in mind.

Even for those costs “anoraks” (as I have apparently described those who make their living out of costs, according to Nicholas Bacon QC), keeping up to date with changes is demanding. So far as damages based agreements (DBAs) are concerned, that is plainly the case, as Nick was able to tell delegates that, in conjunction with Professor Rachel Mulheron, their independent review into DBAs is to be published shortly. It will be recalled that this followed the acceptance by the government that the DBA Regulations 2013 needed to be re-drafted, since the use of DBAs has been minimal. Their review will address the possibility of hybrid DBAs (combining the DBA with another form of funding), which commercial organisations favour, but, so far, the government has not. Watch this space for further developments.

Change is also on the way in disputes between solicitors and their clients (or more usually on a falling-out with their ex-clients), dealt with under the Solicitors Act 1974. Alexander Hutton QC took delegates on a whirlwind tour from the Solicitors and Attorneys Act 1727 up to today via the 1974 Act. In doing so, he illustrated how little has changed, save that, as he explained, the Senior Courts Costs Office (SCCO) has been swamped with applications for delivery up of papers. This has occurred due to the wish of ex-clients to investigate claims where there have been deductions from damages recovered on their behalf, as a result of the fact that success fees cannot be recovered any more from opponents in most types of litigation (see section 44 of the Legal Aid Sentencing and Punishment of Offenders Act 2012).

Much of the law relating to the Solicitors Act is still steeped in Victorian decisions. Whilst they are a model of pith and precision, Queen Victoria died in 1901… should we really be looking at judgments given in her reign to decide whether an expense such as an after the event (ATE) insurance premium is a disbursement which should appear in a solicitor’s bill? After all, as Alex pointed out, ATE insurance was not even a twinkle in an insurer’s eye in Victorian England!

However, help is finally at hand. The senior costs judge, Master Gordon-Saker was able to tell delegates that the powers that be have accepted that there should be an overhaul of the Act; so, when a client receives a bill, the invoice is what it says it is, a demand for payment, without anyone having to worry whether it is an interim bill , a Chamberlain bill, an interim “statute” bill or a final bill. Having been involved in numerous decisions over the years on these points, with appeals on them going both ways, I for one will drink to that.

Back on the conference floor, delegates were entertained with a lively costs case update by Simon Browne QC of TGC , Roger Mallalieu of 4 New Square took us on a comprehensive journey through costs budgeting and Master Colum Leonard addressed delegates about a growth industry in detailed assessment: conduct under CPR 44.11. In doing so, he made a compelling point. Allegations of conduct (or more accurately misconduct by the opposing party) should not be embarked upon lightly: it is a case of only “he who is without sin should cast the first stone”. If there is an issue about conduct which is baseless, advancing such a complaint will backfire to the extent of putting the complainant in a position of being guilty of misconduct. Prospective complainants take note!

Part 36 has given Costs Law Reports more business than any other Civil Procedure Rule, albeit that proportionality is making a game effort to close the gap! Professor Dominic Regan is the walking encylopedia on Part 36 and is the perfect foil for the “graveyard” spot, when attention is flagging at the end of the afternoon and thoughts are turning to the train home. Before that, however, Master Jennifer James had presided over an electronic assessment at which counsel Shaman Kapoor and Matt Waszak of TGC presented arguments on behalf of paying and receiving parties respectively. The bill in question was based on a real case in which the claimant had recovered £15,000 in a budgeted action in which the costs sought exceeded £100,000. Point one (naturally) was proportionality under CPR 44.3(5) and the application of the rule following the just given guidance in West v Stockport NHS Foundation Trust. Other issues raised were intended to illustrate points made by speakers during the course of the day. It was a lively way to draw the afternoon to a close, albeit that it still left delegates somewhat in limbo about how detailed assessment will work under electronic billing.

By the time of the next Costs Law Reports Conference on 24 September 2020, however, a good number of these questions will have been answered. We shall know better, for example, whether electronic assessments will be quicker or slower than their paper predecessor, and at what financial cost. And what of a paperless court? As the senior costs judge explained, the SCCO is going wholly electronic from January next year, so the Practice Direction will require amendment to remove the batting order for the presentation of the solicitors’ papers. Lots of changes, all the more reason to heed the warnings given by Nicola Davies LJ, albeit in the context of experts, about keeping up to date: he (or she) who hesitates about doing so, as Addison put it in Cato, is lost.

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