25 March, 2010
Filed UnderLegal Costs
More on the 51st Update to the Civil Procedure Rules. The changes come into force on 6 April 2010.
CPD 6.4(1)(a) is amended to remove the requirement to file an estimate of costs with an allocation questionnaire in fast track matters.
This must be viewed as being a retrograde step. In future, parties in fast track matters will not know the level of costs their opponent is incurring until the pre-trial check list stage. By that time most of the damage will have been done. A party may, when faced with a large estimate of future costs, take a commercial view of the claim and settle the case early to avoid disproportionate costs. Without an estimate at the allocation stage they will not be able to do this. Equally, it will be too late for the court to make robust case management decisions to control disproportionate costs.
At exactly the same time Jackson LJ is proposing that judges take a more robust approach to case managing claims to control costs, the rules go in the opposite direction.
I understand the motivation behind removing the requirement to prepare the estimate was because the rules require an estimate to be "substantially in the form illustrated in Precedent H". It was thought the expense of preparing an estimate in this way was not justified at allocation in fast track matters. However, when was the last time a party complied with this requirement in a fast track matter (or, indeed, a multi track matter)? Invariably no more than a global figure gets provided.
A sensible rule appears to have been removed to solve a problem which did not exist.