The electronic bill of costs will be introduced on 6 April 2018, with no further delay envisaged, both the Senior Costs Judge, Andrew Gordon-Saker, and Alex Hutton QC – head of the committee overseeing the new bill format – told last week’s Costs Law Reports Conference 2017 in London.
The chief master said the latest update to the CPR, which came into force on Sunday, made the necessary changes to enable electronic bills. “Don’t panic yet, because the amendments to the rules and the practice direction to part 47 which contain the meat, and the practice direction-making document, have not yet been published.
“That will provide, so far as I understand it, that electronic bills will be mandatory for part 7 multi-track claims except for cases in which the proceedings are subject to fixed costs or scale costs or cases in which the receiving party is a litigant in person, or cases where the court has made another order, and where the bill relates to costs recoverable between the parties for work undertaken after 6 April next year.”
Chief Master Gordon-Saker said the new rules would apply to provisional assessments but not legal aid claims or Solicitors Act assessment. However, he indicated the Senior Courts Costs Office (SCCO) would want to extend the provisions into those areas “once we’ve got the right format”.
He said he anticipated that, for work done after 6 April 2018, the parties would email an electronic bill to a dedicated address at the relevant court at the same time that they lodged their papers and request for a detailed assessment hearing in the usual way. “And with those papers they will lodge a PDF version of the electronic bill.”
For cases which straddle 6 April 2018, parties could submit a paper bill for the work done before that date and electronic bill for the time after then, “but frankly we are working possibly on the false assumption that if you’ve got to prepare an electronic bill, you’re probably going to do it for the whole case rather than just a bit of it”.
Over the next two years, the judge said, the SCCO would go completely digital and everything would be handled electronically. “We anticipate that at a detailed assessment hearing, points of dispute will be up on the screen next to the bill.”
Mr Hutton said it was not safe for practitioners to ignore the electronic bill. “The Civil Procedure Rule Committee has accepted the principle that the new bill will not be widely used until its mandatory. The Ministry of Justice is behind it and all are agreed on the 6 April 2018 transition date.”
Chief Master Gordon-Saker also told delegates that the SCCO has failed to find someone to fill the post of principal costs officer, despite applications being opened up beyond the Civil Service to Costs Lawyers and other outsiders earlier this year.
He said there have now been three rounds of recruitment to fill the role – following the retirement of John Lambert in June 2016. The third was the one that was opened up.
The principal costs officer is accountable for day-to-day operations across a number of functions within the SCCO and acts as a senior technical reference point, offering support and guidance to other costs officers. He or she will be paid between £51,039 and £68,969.
Chief Master Gordon-Saker said that, nonetheless, the SCCO had “got rid of the administrative backlog”, meaning that when practitioners lodged a bill for assessment, “you should get notice of a hearing date within a month at most, as opposed to more than three months, as it was three years ago, and you should get a hearing within three to six months”.
He also said that the newest SCCO judge, Prinz Nagalingam, would bring a new perspective to the office “because he may well be the only costs judge who has drafted a bill or points of dispute”.
On Lord Justice Jackson’s recent report on fixed recoverable costs, the chief master said that, before the election “there was a real appetite for this but now there doesn’t appear to be so much of one – the government seems to have other things on its plate”.
He suggested that the Department of Health was “unlikely” to ignore Jackson LJ’s recommendation for the Civil Justice Council to oversee the process of introducing fixed costs in clinical negligence cases – rather than continue with its long-running consultation process – but that the area the government would be “the least enthusiastic” was judicial review.
“Lord Justice Jackson suggested an extension of the Aarhus rules [for environmental judicial review cases] to all judicial review cases. I would be willing to take a sizeable, though proportionate, wager because the government has no interest at all in limiting the costs recoverable from unsuccessful JR claimants.”
Chief Master Gordon-Saker said the predicted increase in solicitor and own client assessments had not yet materialised. He noted that although many conditional fee agreements said they were not contentious business agreements, this was not definitive.