The Government’s report Extending Fixed Recoverable Costs in Civil Cases noted one of the benefits of extending fixed recoverable costs, including applying a fixed % uplift on the fixed costs if a party succeeds on a Part 36 offer (rather than allowing indemnity costs), was that this would avoid the need for the “keeping of records to inform an assessment should it arise”.
So, can solicitors now dispense with time recording? Not in the following circumstances:
- The new Fixed Recoverable Costs regime applies to the costs recoverable from the other side. If solicitors intend to continue to charge their clients on an hourly rate basis, detailed time records must continue to be kept.
- If a non-personal injury case suitable for the Intermediate Track settles “from pre-issue up to and including the date of service of the defence”, the costs are capped not fixed (CPR 45.50(3)) and are therefore subject to assessment if not agreed. Time records will therefore need to be kept for such cases up to the date of service of the defence.
- A party will not know whether a matter will be allocated to the Fast or Intermediate Track until allocation. If a matter is allocated to the Multi Track, fixed costs will not apply. If there is any uncertainty as to allocation, time records need to be kept up until that stage.
- CPR 26.18 allows the court to reallocate a case from the Intermediate Track to the Multi Track in “exceptional reasons”. If a matter is reallocated, time records will be required for all work undertaken pre-reallocation (CPR 45.14(1)).
- The Court may consider a claim for an amount of costs which is greater than the fixed recoverable costs where there are “exceptional circumstances” (CPR 45.19(1)). There would obviously be no point in applying for such costs if time records have not been kept.
- CPR 45.10(1) allow the court to consider a claim for an amount of costs which is greater than the fixed recoverable costs where a party or witness is vulnerable, that vulnerability has required additional work to be undertaken and by reason of that additional work alone, the claim is for an amount that is at least 20% greater than the amount of fixed recoverable costs. Again, there would obviously be no point in applying for such costs if time records have not been kept.
Other than that, you can pretty much forget about time recording from now on.