The cost of the costs budgeting process and the fact it occurs “relatively late” in proceedings are key concerns of the head of the new media and communications list, he said last week.
In a speech in London to the US-based Media Law Resource Center, Mr Justice Warby said costs budgeting has been identified by users of the list as the “procedural issue of pre-eminent importance”.
“For me, there are two main concerns. One of these was highlighted [in a speech by Chief Justice Allsop of the Federal Court of Australia]. He noted the particularly bitter irony, where case management undertaken to curb costs results in adding to them. That is a real risk attendant on the process of creating and then agreeing or disputing costs budgets.
“The other concern is that costs budgeting takes place relatively late in the process – too late, if the costs of some early resolution measures are to be controlled.
“If I am right about the continued relevance of preliminary issues, there is a risk that cases will reach a relatively prompt resolution in court without any judicial cost control beforehand. One issue for consideration by the court users [at a meeting next month] will be whether this is a problem that needs addressing and, if so, how it would best be dealt with.”
He had earlier dwelt on the question of preliminary issues, saying the virtual abolition of jury trials in defamation cases meant it was “now possible for many more cases to reach a final resolution more economically by early judicial decisions on key issues of fact, or mixed issues of law and fact”.
However, Warby J continued: “This is an area in which we must always be alive to the risk of front-loading costs. We need to ensure that any order for a preliminary trial is really appropriate, and fits the particular case.”