Another day passes and another client emails me, following a CCMC, to advise that there was no time at the hearing to deal with the budgets and the matter is to be relisted at a later date to deal with budgeting. Am I free to attend?
The further hearing is listed more than 3 months from now. In terms of the directions that were given at the CCMC, before the next hearing the parties will be required to:
- Complete disclosure
- Prepare and exchange witness statements
- Obtain further medical evidence
- Obtain and exchange non-medical expert evidence
By the date of the next hearing, the original costs budgets and Precedent R budget discussion reports will be out of date as much of the work that was previously “estimated” will have become “incurred” costs. The “incurred” costs will not be subject to costs management and the court will therefore have lost the opportunity to control a large slice of the costs that will be incurred.
How does this keep happening?
The White Book’s snappily titled supplement Costs & Funding following the Civil Justice Reforms: Questions & Answers, 5th Edition explains:
“As costs management and case management go hand-in-hand, the two cannot be separated. If the case management directions are set without reference to the costs, with the budgeting exercise conducted afterwards, then all the court is doing when costs managing is pricing directions that have been given. The consequence is that if the court subsequently determines that a particular direction cannot be budgeted proportionately, there is nothing it can do as the direction has already been given. In contrast, if the two are done hand-in-hand the proportionate expenditure informs the appropriate direction. In this respect it is curious that the Chancery Guide suggests that normally directions are dealt with first and costs management afterwards, but with the directions only likely to be informed by the budgets. In simple terms, the danger of setting the directions and then costing them is that the directions ordered are those that the court determines are needed in the particular case. However, CPR r.44.3(2)(a) makes it clear that proportionality trumps need and the overriding objective “to deal with a case at proportionate cost” applies to any case management decision. The court should be giving directions that see the case dealt with proportionately and that assessment can only be made by dealing with the directions and the relevant phase of the budget simultaneously.”
This is not simply the sensible view of the author of that section (Regional Costs Judge Simon Middleton). This is what forms part of the judicial training all judges should have received in relation to costs management. Why do so many apparently ignore this?
What is the answer?