The defendant costs specialists

More transparent bill of cost

By on Nov 14, 2015 | 2 comments

Those given the job of trying to design the new bill of costs format have been cursed with a herculean task (probably the legal equivalent of mucking out the Augean stables).

At the heart of the problem is Lord Justice Jackson’s view that: “The bill format must be compatible with existing time recording systems, so that at any given point in a piece of litigation a bill of costs can be generated automatically”.

This has inevitably led to all the focus being on J-Codes so bills can be (semi-)automatically generated based on case management software.

However, it is worth considering the three requirements that he believed would “have to be satisfied” so we can consider to what extent the current bill produced for the pilot scheme meets those requirements. The first requirement was:

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

I may have missed something here, but so far as I can tell, the pilot model bill does nothing to attempt to address this issue.

To be fair, I am not really sure what Jackson LJ had in mind. When I first saw this statement, my heart sank. Narratives to current bills are often verbose, selective, misleading twaddle. The idea that receiving parties should be encouraged to provide more “why” was never a great one. Certainly, some badly drafted bills lack certain information that common sense would suggest could, and should, be helpfully added. If there is a claim for work interviewing a witness despite the fact no evidence from that witness was ever served, provide in the bill at least a brief explanation as to what evidence it was hoped this witness could produce and why no actual evidence was served. The same goes, for example, to expert’s evidence not served. But, do we really need bills to pre-emptively seek to explain and justify work where there is every possibility no challenge will be made?

Nor is it obvious how the new bill provides a more transparent explanation (if that was lacking from the current version) as to “what work was done”.

The one advantage of the requirement for bills to be drafted by phase is it should become much easier to see how long has been spent of certain tasks overall. Currently, it can be an exceptionally time consuming job to establish how much time has been spent in total on, for example, drafting witness statements or preparing a schedule of loss. It is easy for excessive time to be camouflaged with 30 minutes here, 24 minutes there, etc.

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    2 Comments

  1. Instead of trying to re-invent the Bill of Costs, why not re-invent the Precedent H. If the costs management conference addresses the overall proportionality of costs only, doing away with the various phases, then there is no need to worry about how to separate the costs into phases at the final billing stage. With only one “phase” to deal with, it would simply be a case of splitting the final (traditional format) Bill of Costs at the date of the costs management order. Or, alternatively, just budget under two costs budget phases (1) costs post ccmc and (2) trial costs – which would again pose little difficulty at the final Bill of Costs drafting stage (and no need for J-codes either). It is the Precedent H format which is the problem (oh, and Lord Justice Jackson!!).

    Ian

    19th November 2015

  2. Not only is the new format bill less transparent, but it is so confusing that the time taken by Judges to assess costs using it is likely to significantly increase. Anyone who is currently looking at a 6 month delay for their PA, hold onto your hats!!

    What’s more, is that the system is predicated on J-Codes, which the ACL recently reported on (http://www.associationofcostslawyers.co.uk/news/acl-e-bulletin/us-experience-points-to-need-for-costs-lawyers-in-j-codes-process), with
    Joe Rose saying: “However, many in the US now believe that the UTBMS Codes should be dispensed with altogether because their lack of consistency has resulted in a significant amount of wasted time and the resulting data being of little use.”

    We have all remembered the suggestion that there will be a fixed fee for ‘tinkering’ with the new format bill, which is likely to be low. Given that the J-Codes don’t currently work, are being adapted for a purpose for which they were never intended and given that solicitors are simply unable to time record, Costs Lawyer input is likely to have to be significant for no actual return. No one minds working for free, do they?

    Liz

    27th November 2015

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