8 March, 2013
Filed UnderLegal Costs
Costs Lawyers are meant to have a central role in the new costs budgeting process (at least in theory).
Costs budgeting is being introduced on 1 April 2013 through amendments to CPR Part 3.
Costs Lawyers’ rights are governed by The Statement of Rights, which governs the rights of a Costs Lawyer holding a current practising certificate, which covers:
“Rights of audience in all proceedings being conducted under Parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge such rights to exclude an issue of entitlement to costs under CPR 44.3 and entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) or CPR 48.7 other than in connection with proceedings commence [sic] under (vi) and (vii) below.”
“The right to litigate in all the proceedings under parts 43-48 of the CPR and under part 52 of those rules with regard to appeals from detailed assessment hearings to be listed before a High Court judge or a circuit judge”
CPR Part 3 is not covered by either of these sections and in the absence of an amendment to the Statement of Rights before 1 April 2013 Costs Lawyers will have no “right” to be involved in costs budgeting. Fortunately for Costs Lawyers, and contrary to what many of them previously hoped for (beware of what you wish for), Kynaston v Carroll  EWHC 2179 removes this problem as costs management hearings will be treated as being heard in chambers and Costs Lawyers can attend so long as they are instructed by a solicitor.
Unfortunately, it does mean Costs Lawyers will not be able to act for litigants-in-person. Although litigants-in-person will not be required to prepare costs budgets they may well want to be represented to make representations as to the other side’s budget. Even if Practice Direction 46 at paragraph 3.1 is amended as per my suggestion the other day, this will not assist as that rule is concerned with “assistance in assessing the costs claim”, not the setting of a budget.
On the other hand, one change to the CPR significantly increases the rights of Costs Lawyers.
The Statement of Rights above currently excludes the right to deal with issues as to the entitlement to costs under CPR 44.3. It is not remotely clear why this should. If the powers that be consider Costs Lawyers competent enough to deal with the often very complex issues of the quantification of costs why are they deemed incapable of dealing with the issues of entitlement?
However, the issue of entitlement is currently dealt with by CPR 44.3 but that rule moves, from 1 April 2013, to CPR 44.2. At a stroke Costs Lawyers will not now be excluded from dealing with this area.
Equally, CPR 44.14(1)(b) now moves to CPR 44.11 and Costs Lawyers will be able play too.
Same with CPR 48.7, which has now moved to 46.8.
Of course, it may be that the powers that be are on top of this and a new Statement of Rights is imminent. (I can’t be the only one busy reading the new rules.) If so, I would suggest the rights are widened to cover costs budgeting/management and the previously excluded sections of CPR 44 to 48, rather than simply retain the current restrictions.