Coulson urges caution over SARPD rule change

Mr Justice Coulson, the former chair of the Civil Procedure Rule Committee’s (CPRC) costs sub-committee, has explained that the issue around incurred costs thrown up by the Court of Appeal’s ruling in SARPD earlier this year was deliberately left alone in drawing up the rules.

The minutes of the July meeting of the CPRC, which were published last week, said the committee’s view was sought on what action should be taken following the ruling. In SARPD, the appeal court said parties that want to take issue with the incurred element of a costs budget should do so at the first case management conference.

The minutes said: “The chair reported that paragraph 45 of the judgment indicates that litigation costs were incurred and noted by the judge. The rules enable the CMC judge to comment on costs incurred, but the fear among practitioners was that not only the costs in the budget but those incurred would be assessed. [Committee member] Andrew Underwood commented that, because of the judgment, parties may not seek to agree incurred costs as they will be subject to detailed assessment.

“Mr Justice Coulson urged caution, saying that this issue was left alone for pragmatic reasons. The aim was to relieve the initial burden and there was a concern that the cost budget would go into the area of incurred costs. It might be preferable to make it plain through guidance, as being more descriptive or prescriptive in the rule would create its own difficulties. If a rule change was thought necessary, it could be amended, for example, to say that incurred costs are irrelevant.”

The issue was delegated to the costs sub-committee to consider and report back. Master Roberts is chairing the group in place of Coulson J, and Richard Viney has joined District Judge Lethem (pictured) and Mr Underwood as members.

Meanwhile, the papers also indicated that the government has shifted policy on introducing fixed recoverable costs in clinical negligence cases, with the threshold likely to be cases worth up to £25,000, rather than £100,000 or even £250,000, as has previously been mooted. The Department of Health consultation has still not been published, however.

Elsewhere, in an article last week for The Times, Lord Justice Jackson said his call to extend fixed recoverable costs to the lower reaches of the multi-track was not an admission that costs management has not worked, saying that rather they were in line with his recommendations seven years ago.

“The experience we have gained in recent years – from fixed recoverable costs and costs management – now makes it possible to develop a regime of fixed recoverable costs for the lower region of the multi-track. There is room for debate about the cut-off point.”

He argued that costs management came as “an unwelcome shock to many because of the long tradition that litigation goes forward untrammelled, with costs to be added up at the end”. As a result, costs management has “inevitably” been unpopular.

Sir Rupert continued: “However, the crucial fact is that increasing numbers of practitioners and judges are becoming extremely good at costs management. This shows that, contrary to the predictions of doom-mongers, the exercise is possible. It is a valuable discipline and in the public interest.”


This post was posted in ACL e-Bulletin

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Costs News
Published date
31 Oct 2016

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