The defendant costs specialists

Breakdown of bill by phase

By on Oct 5, 2015 | 12 comments

The requirement from 1 October 2015 to serve a breakdown of the costs claimed for each phase of the proceedings together with the Bill of Costs, where a costs management order has been made, is an odd one.

This is clearly intended to be an interim measure until the new Bill of Costs format is introduced where the Bill itself must be drafted by phases.

Firstly, to prepare a breakdown by phase requires either the fee earner to have accurately recorded all work by phase (highly unlikely), as the case progressed, or the costs draftsman preparing the Bill to allocate each routine communication and unit of work to the appropriate phase. Once this work has been undertaken, it is surely almost as simple to simply draft the Bill itself by phase. Why force the receiving party to do all the hard work and then not require the small additional step to be undertaken to complete the process?

Secondly, is there seriously anyone on the Rules Committee naïve enough to think that were a party discovers they are over on some phases but under on others that they will not be tempted to shift some of the work over into other phases of the breakdown in the knowledge it will be an extremely difficult task for the paying party to cross-check the accuracy against the non-phased Bill?

Thirdly, what is a judge on assessment meant to do with a breakdown showing a party has gone over for some phases but where the Bill itself is not drafted by phase? Presumably they will go through the Bill in the normal way applying reductions in the ordinary manner, but then what? How are they to tell whether they have now reduced some phases below that approved by a costs management order (which normally should not happen) or whether they are still over on others and further reductions are required? Are the advocates at the assessment meant to adjourn and work out which reductions have been made to each phase before going back before the judge to consider whether he needs to increase or decrease further? Has the slightest thought been given as to how long this would take (not to mention the problems trying to apportion routine communications to any particular phase)?

I’m becoming increasingly convinced that implementation of the Jackson reforms is not being done with any intention this should work but is a deliberate attempt to increase costs and confusion to the extent that everyone throws their hands in the air in horror and begs for fixed fees across the board.

    12 Comments

  1. Many who comment on this site, including me, have had similar suspicions for some time and everything that has happened since All Fools Day 2013 has merely reinforced those suspicions.

    I accept that the now customary failure to produce coherent and comprehensive rules may simply be evidence of the dearth of talent at the MoJ and its offshoots, rather than the result of some carefully calculated agenda. However, the casual and incompetent way in which Precedent H and its accompanying guidance were produced, with no evidence of any input from those with a practical understanding of costs, and the resolute failure during the ensuing two and a half years to respond to, or even to acknowledge, reasonable criticism of their defects, does indeed suggest that there is an agenda not to save costs, but merely to create a system that is bound to fail. The latest Precedent Q is merely the latest product of the same system.

    I’ve just prepared my first bill substantially in the new format. I did so in the conventional way, ie as a proper costs drafting exercise, not at the touch of the mythical button of judicial folklore. Afterwards I had another look at what Jackson LJ in his report said were his requirements for the new format, namely:

    ‘(i) The bill must provide more transparent explanation than is currently provided, about what work was done in the various time periods and why.

    ‘(ii) The bill must provide a user-friendly synopsis of the work done, how long it took and why. This is in contrast to bills in the present format, which are turgid to read and present no clear overall picture.

    ‘(iii) The bill must be inexpensive to prepare. This is in contrast to the present bills, which typically cost many thousands of pounds to assemble.’

    I’m afraid that, despite my best endeavours, I consider none of these requirements has been met. I believe that, despite the efforts of those who have struggled for several years to devise it, the main problem is that the new format is a vastly complex structure built on the weak and defective foundation of Precedent H, so is bound to fail.

    If those who make the rules could only be honest about their objectives, it would save time and money all round if we returned to the old system, where the costs set out in a traditional bill were assessed in the usual way, but then the costs found to be reasonable and proper were reduced by an arbitrary one third to punish the successful claimant for having been a burden on the courts and to reward the defendant’s insurers and the NHSLA for funding/having the ear of the government.

    Peter

    5th October 2015

  2. ‘I’m becoming increasingly convinced that implementation of the Jackson reforms is not being done with any intention this should work but is a deliberate attempt to increase costs and confusion to the extent that everyone throws their hands in the air in horror and begs for fixed fees across the board.’

    Something I’ve said many times. It stinks.

    Pete B

    5th October 2015

  3. I genuinely just think the people coming up with the Rules don’t think things through and most likely have little to no involvement with day to day costs work.

    !

    5th October 2015

  4. I had already done a couple of bills in phases – effectively a mini bill per phase.

    Never had a complaint from a paying party about the format.

    The Prec Q approach is nonsense – it’s effectively doing the bill twice.

    I’m tempted to lodge a few in “my” format just to see what the judicial reaction is. After all, it has all the required information and it costs less to prepare.

    Paul

    5th October 2015

  5. I entirely agree that if you have to do sufficient work to produce a phase summary at the end of a bill, it is just as easy to produce a phased bill. A summary on its own is a little pointless given that, if it doesn’t tie in with how the bill is drafted, a court has no way to accurately determine which costs are claimed over budget and are to be disallowed. I suppose all a court could do in that circumstane is note the overspend and disallow more, in terms of total figure, if it needs to at the end of the item-by-item assessment.

    I have drafted quite a few phased bills now. Solicitors are not ready for them. Of course, if there is an overspend in one phase but an underspend in another, it is possible to move work, BUT that is not so easy. The phases are quite restrictive if one uses them as they are intended to be used. One can’t for example, put drafting pleadings into ADR/settlement just because there is an overspend in the Isse/statements phase. That would be ridiculous and a court would rightly criticise a party for it.

    In my experience, solicitors are not yet thinking enough about what needs to be budgeted for. Until they do, they can expect to lose costs. ADR/settement, for example, is something that often goes on throughout the case, not something that just happens right at the end. If there is insufficient budgeting for that, then it is extremely difficult to fit that work elsewhere into a phased bill, particularly if other phases are already used up! There are many examples like that. To compound it all, I often see budgets with no contingency at all buit in, which of course, does not help.

    William Wyatt

    5th October 2015

  6. The ACL is represented by Costs Lawyers on the committee and I can only assume that they have simply blithely nodded every suggestion through because in reality it appears unworkable.

    We are advised by Alex Hutton QC that 2 years of work has gone into the new bill and we will have to use it whether we like it or not – this despite the ACL membership response to the new bill format, together with various respected members of the ACL writing directly to the Committee and being advised that they are too far down the line for anything to be changed.

    So much for consultation!!!!

    Anonymous

    5th October 2015

  7. 2 years eh…consisting of 4 meetings, at 2 hours a pop in which people who know little to nothing about IT software, costs or how real life works in a solicitor’s practice had some tea and read the “Dummies Guide to Excel” before spending a few hours one evening knocking up a glorified spreadsheet that reads like the world’s most complex till receipt. If any Judge has any integrity at all, they will be winging out a new standard order along the lines of “new format bill format dispensed with as it’s crap” at the first opportunity.

    This too amuses me:

    ‘(i) The bill must provide more transparent explanation than is currently provided, about what work was done in the various time periods and why. (YOU MEAN LIKE A PROPERLY DRAWN BILL)

    ‘(ii) The bill must provide a user-friendly synopsis of the work done, how long it took and why. This is in contrast to bills in the present format, which are turgid to read and present no clear overall picture. (YOU MEAN LIKE A PROPERLY DRAWN BILL – although some of the dross churned out by so called experts does more harm than good)

    ‘(iii) The bill must be inexpensive to prepare. This is in contrast to the present bills, which typically cost many thousands of pounds to assemble.’ SOME DO, MOST DO NOT. It doesn’t matter anyway, as the cost is always hammered down on assessment.

    Me and my Cat

    6th October 2015

  8. I am given to understand, that there has been division amongst Cost Lawyers, at the role of the ACL in the new bill format and the question of interests. A previous suggestion on this blog by someone to openly answer such concerns, appears to have gone cold and without any such answers appearing. Would anyone care to comment now we have the unwieldy draft bill format and Precedent Q to consider, but which appear formatted in a particular way to suit?

    Anonymous

    6th October 2015

  9. What makes me laugh is an ACL representative sits on the Hutton Commitee representing all us Costs Lawyers sits in silence nodding through the new format Bill and all that it entails and then the very same person then throws their weight behind the ACL response which includes amongst other things alternative Bill format – utter farce….

    Anonymous

    6th October 2015

  10. I despair of this profession now. The lunatics have truly taken over the asylum. We have barristers designing bills of costs whilst the ACL is well,,,,,,,,,the ACL, Costs Judges having 28 inch screens installed at the SCCO so as to read the new bills, and Costs Judges towing the party line when they must know that this is truly all doomed to fail – as it was designed to do so that fixed costs will be brought in across the board. That is what Jackson wanted and that is what Sir Rupert will get. I am just glad that I am at the end of my career and not the start of it. Anyone thinking of becoming a costs draftsman would be better off mining for coal….

    Ticklemebills

    8th October 2015

  11. The problem with all legal associations, whether they be ACL, Law Society or Legal Execs is they have representatives from both sides of the fence. There is the same problem when parties like Law Society intervene over things like CFAs and ATES where the society is conflicted as its membership not only acts for both sides but acts for ATEs and BTEs so you get bland submissions and bland judgments like Sarwar.

    Northern costs monkey

    4th November 2015

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