The final procedural rules for next April’s extension of fixed recoverable costs to civil claims worth up to £100,000 will be made public as soon as possible, Lord Justice Birss said last week.
Birss, who is deputy head of civil justice and a member of the Civil Procedure Rule Committee, told the Association of Costs Lawyers’ (ACL) conference on Friday that the CPRC hoped to be able to publicise the rules after its December meeting, without needing to wait for ministerial signoff.
The judge said: ‘It’s well understood that we need to give everyone as much notice as possible of the changes, and so we’re working on early notice after the December meeting. The difficulty with that is normally the Rule Committee doesn’t publicise rule changes until they’ve had ministerial approval. But we can do it “subject to ministerial approval” – we’ve done it in the past, and this is a plain case for trying to do it on this occasion.’
Birss was headed to the CPRC directly after the ACL conference to chair a meeting in which the committee would give ‘full scrutiny’ to the draft fixed costs rules worked on by its costs sub-committee headed by Mr Justice William Trower. All being well, the rules are then due to receive final CPRC approval in December. The changes will see fixed recoverable costs extended beyond the fast track to nearly all money claims worth up to £100,000, as proposed by Sir Rupert Jackson in 2017.
Meanwhile Birss confirmed that work is ‘on track’ in relation to the Civil Justice Council’s latest costs review which is examining the future of costs budgeting among other issues. Birss, who chairs the CJC costs working group, said the group was currently ‘working hard’ reading submissions and was on target to report back to the main council in January. Lord Justice Birss
He said: ‘Even though we’ve now had costs budgeting for about 10 years, there continue to be some quite loud voices complaining about it and saying it should be abolished. So it’s appropriate to think about it in a proper way, and give people a chance to express their views and consider what – if anything – should be done.’
Birss gave a run-through of some of the options put forward to the review. He said: ‘You could leave costs budgeting alone or abolish it altogether – although you might think that’s a little ironic given that in Australia, the state of Victoria is about to bring it in.
‘We could turn it to a “default off” instead of a “default on” system; in other words, make it so the rules are that you only have to do costs budgeting if the judge makes an order requiring it. That could allow it to be left for cases in which one or other party was concerned there was a risk of disproportionate costs.
‘Maybe we should de-couple [budgeting] from the CMC… Maybe we should introduce a fixed set of possible budgets, like shoe sizes. Maybe we should allow changes to the budget to be made more easily. Maybe we should provide that only costs specialist judges do costs budgeting… Maybe we should abolish costs management, but keep the requirement to serve a costs estimate at the start. Maybe we should introduce it for every claim in the system including all those over £10m, or at least for PI claims over £10m. Everything I’ve [listed], someone has suggested.’
Birss added that the extension of fixed costs to claims worth up to £100,000 is also a relevant factor. ‘Some people say that the low end of the multi-track, up to £100,000, is the place where costs budgeting works really well, to prevent disproportionate costs. But with fixed recoverable costs coming in, maybe that has eaten costs budgeting’s lunch – and so that’s a reason for getting rid of it altogether, because that’s the place where it would be most useful.’
This article first appeared in The Law Society Gazette on 7 November 2022.