The new electronic bill of costs is now upon us and it already causing confusion at the most basic level.
Costs Lawyer magazine reports ACL council member Claire Green, who has paid a key role in the development of the new bill and as been running the ACL’s training courses on the new bill, warning:
“the new bill will ‘change the whole ethos and environment we’re working in’ and too many people seem unaware of what’s coming – as one small example, you now have to serve the bill on the court at the same time you serve it on the other party.”
This would be a surprising development if true.
Previously, detailed assessment proceedings were commenced by serving the bill on the paying party. It was not, at that point, filed with the court. Points of Dispute were served in response, but not filed. Optional Replies were then served, but not filed. It was only if, and when, a request was made to the court for detailed assessment that the various documents (and bill) were filed.
It would therefore be odd if the rules had now been changed so that the courts were to be bombarded with 1000’s of bills (both hard copy and electronically) at a stage of the assessment process where they have no involvement or interest and where most matters will settle without the need for any input from the court.
The problem is caused by the wording of PD 47 para.5.1A:
“Whenever electronic bills are served or filed at the court, they must also be served or filed in hard copy, in a manageable paper format as shown in the pdf version of Precedent S. A copy of the full electronic spreadsheet version must at the same time be provided to the paying party and filed at the court by e-mail or other electronic means.”
The first sentence appears tolerably clear:
- When an electronic bill is served it must be served both electronically and in hard copy; and
- When an electronic bill is filed it must be filed both electronically and in hard copy.
The second sentence is a clear as mud and is clearly the cause of the confusion.
I believe the correct position is set out in Cook on Costs 2018:
“The electronic bill of costs cannot be fully printed out on paper. A summary version only will have been served in hard copy on the paying party. The full version will have been sent electronically. When requesting a hearing date, the summary paper version will need to be lodged with the N258 in the usual way together with the various other accompanying documents as described above. At the time of writing, the only court email address currently available is the SCCO’s, namely firstname.lastname@example.org.”
This appears to mirror the current position (other than the fact that service/filing must also be electronic).
Further support comes from Senior Costs Judge Gordon-Saker, speaking at the Law Society Commercial Litigation Conference on 16 October 2017, who confirmed that the bill will be emailed to the court at the same time as lodging papers for assessment, together with the paper version.
Poorly drafted rules are the least of the problems to come.