Jason Rowley tells ACL conference combining Word and Excel could improve assessments
The electronic bill of costs is not working and a hybrid that sees the points of principle and dispute in a Word document and the detail in an Excel spreadsheet may be better, the new Senior Costs Judge told the ACL last week.
Speaking at the Manchester conference, Jason Rowley – who formally took over at the start of this month – urged Costs Lawyers to provide him with feedback on the electronic bill.
In his keynote address on the future of detailed assessment, he used witness statements as an example of how change was not always for the better.
Whereas in the past the judge would hear a person’s evidence and the cross-examination, “these days you have a witness statement which they say is in their own words and then they’re just cross examined about why it isn’t right in one way or another. You don’t actually get to hear what they say…
“It would be more useful [too] if they had any evidence in them – a lot of witness statements are comments about everybody else, comments on the documents, they say ‘Well I’m not going to give you any submissions’ and then you get a whole load of submissions.”
On the other hand, summary assessments “have improved over time”, with judges “much more comfortable” doing them than they used to be, even in the High Court.
Judge Rowley said arguments around hourly rates had evolved since the pandemic and the shift to home working, with geography becoming less important than previously.
There was also the broader question of whether there was “such a thing as a high street firm anymore”. He said: “Not on the bills that I see… everybody tends to specialise these days. They’re not really high street firms in the way that we traditionally speak about somebody who would be doing a will in the morning, a conveyance in the afternoon and litigation with counsel in the evening.”
The clearest example of evolution in the SCCO, he went on, was in the move to electronic bundles – from staff not being able to “walk in a straight line for more than about three yards before you hit a pile of boxes” to barely a piece of paper anywhere.
But while electronic bundles made it far easier to find particular documents, Judge Rowley said they were often “filleted so that they answer the points of dispute but you don’t get the sense of the flow of the file the way that you used to when you used to be able to flick through it”.
They also seemed to cost a lot, and “simply blaming the other side for taking lots of points doesn’t seem to me to be an answer for saying ‘this bundle’s taken a long time’”.
He acknowledged that electronic bills divided opinions and questioned whether the level of detail required to make them work was “actually a good thing”.
Judge Rowley asked: “Do we actually really benefit from having the enormous amount of detail that we have? My view is if you give a bunch of lawyers more things to look at, there’ll be more challenges.”
The goal, he reminded practitioners, was to reach a “sensible approximation” – looking at some things in detail and then extrapolating. “But that doesn’t seem to be quite how it works with the advent of the electronic bill.”
E-bills were not good for fee-earners, who did not enjoy recording time in lots of different fields, opposing firms or litigants in person, while only the “five and a half” SCCO judges handled detailed assessments using them, he argued. They were good for the people who created them – Costs Lawyers, generally speaking – because they knew how to use them. “It seems to be a lot of effort, potentially not for much reward in terms of assessment.”
The judge questioned why the e-bill had to be a spreadsheet. “Solicitors don’t tend to use them, barristers don’t tend to use them, lots of advocates in my experience don’t update them while you’re there, which seems to me to be half the point of having it at a hearing… or they have their own spreadsheet, which seems to be the most pointless thing.”
He went on: “And even if you are all using the bill, it still doesn’t add up the same figure for everybody, which is just the most astonishing thing. Even on a three-day assessment, you can put money on the fact that we won’t have the same figures… So we end up fudging the figure somewhere in the middle of the ones that we’ve all got in the way that has always happened.”
Judge Rowley identified the “wall of data” as a problem. “It doesn’t really give you that feeling for what the case is about in the way that a traditional bill would’ve done.” Even if there is a lengthy narrative, the judge cannot just scan thousands of entries “in a way that you could scan through a paper bill”.
But just because it is called a detailed assessment does not mean “everything has to be detailed”, the judge said, and this was where points of dispute came in.
“They’re meant to be succinct, even Ainsworth… makes it absolutely clear that points of dispute should be short and to the point and therefore focused. There should be something on which your advocate can elaborate at the hearing without being told ‘But that’s not pleaded’, but that seems to be where we are heading.”
The way assessments should work is to make a broad point about multiple items and give a few examples, rather than having to challenge each individually, unless the receiving party can explain why those points do not apply to the other items. “There has to be a way of dealing with larger elements without having to detail every single one. Otherwise it just makes everything uneconomic.”
Judge Rowley said assessments were also taking longer. He used to have a “simple” approach that every £200,000 of a bill equated to a day of the hearing. “That’s not the case any longer. A £150,000 bill now often takes more than a day to assess, whether it’s the electronic bill, whether it’s the extent of the points of dispute, whatever it is. We’ve encouraged small points to be taken and then they are fought to the bitter end.”
Parties are not going out after the judge rules on the points of principle to reach an agreement as much as they used to, he said.
His worst example was a 12-minute item on a £1m bill. “I had one side saying that should only be six minutes of estimated time, but [had] nothing to look at. I’ve got this completely sterile argument about ‘It’s 12’, ‘No, it’s six’. I did think it was going to be a long day after that.”
The answer, Judge Rowley said, could be a combination of Word and Excel. “Most people are more comfortable with a Word document than an Excel spreadsheet and a Word document is a more natural environment for setting out your arguments and points of principle, and your points of dispute and replies.
“I appreciate there are moves to try and get everything onto the electronic document. Personally I find that’s going to be a more difficult approach, but that may be the way that some people would rather go, but it seems to me that Word document is more obvious for the general bits. Spreadsheets are much better for the schedules… that provide the detail.”
There were other approaches, he added, pointing to the simple form used for costs in the Supreme Court and Privy Council. “There is plenty of imagination to be used out there.”
The risk was that “not only are large bills difficult to deal with, but small bills are difficult to deal with too and we end up in a situation where detailed assessments are not an economic option for people to take. And if that happens, none of us is going to be happy”.
Judge Rowley concluded by encouraging views from the profession about electronic bills, paper bills and how a new way forward could be forged.
The ACL will pass on your suggestions to the Senior Costs Judge. Email: enquiries@costslawyer.co.uk