The Civil Procedure Rule Committee has decided to delay compulsory introduction of the new electronic bill of costs – a month after resolving that it would start in October in the Senior Courts Costs Office (SCCO).
A spokeswoman for the committee said it has been deferred “to ensure that all courts are ready to accept electronic bills of costs”. She said the aim was to implement it in April 2018, but this was subject to the parliamentary timetable.
A paper before this month’s meeting of the rule committee said that while the Courts Service and Ministry of Justice were “very supportive of the project”, there remained a concern “that implementing the new bill on a mandatory basis from 1 October 2017 in all the county courts across the country represents practical risks.
“Our view is that the best option is bringing in the amendments to the rules and PDs as planned, but with the date on which the new bill is mandatory pushed back to 6 April 2018. The April date would apply everywhere, i.e. in both the SCCO and the county courts. Note that the SCCO handles detailed assessments for Central London County Court.”
It said bringing in the bill on a mandatory basis on different dates in different courts “creates complexity and a real risk of confusion for court users, so that option is undesirable”.
The delay would also allow for the IT upgrades being rolled out in the county courts, and for training of judges and court staff.
The rule changes will go through in October, so parties would be free to use the new bill on a voluntary basis in the meantime.
ACL vice-chairman Francis Kendall (pictured) said: “The profession will welcome more time to get to grips with the electronic bill. This delay provides an opportunity both to iron out any remaining glitches and to make the bill more advanced and user friendly.
“Also, rolling it out in all courts – rather than having a twin-track approach – would be eminently sensible. It is good to see that pragmatic and sensible decisions are being made regardless of any pressure for change.
“My concern, however, is that some solicitors will just use the delay to avoid addressing this new approach to billing at all. The fact is that an electronic bill of costs is coming sooner or later and lawyers need to be ready.”
The committee also published the minutes of its May meeting this week. These said: “Mr Justice Birss introduced the item which proposes that the pilot scheme set out in PD51L becomes mandatory and that the scheme is extended to assessment of costs in the county court. The proposal requires filing of bills of costs on an electronic spreadsheet; it does not require parties to change the way in which they record details of costs, just to submit them in a particular way. The proposals apply to part 7 multi-track claims, with detailed exceptions.
“Senior Costs Judge Gordon-Saker reported that while the scheme remained a pilot uptake would be limited and to date three bills in electronic format had been filed.”
The background paper before the committee – written by the sub-committee chaired by Birss J – said that “very many users firmly support the proposals, including the Association of Costs Lawyers, but others do not”. But it cited multiple reasons for making the bill mandatory.
While the very limited experience of the pilot was that “no problems of any significance have emerged”, the sub-committee argued that “until it is mandatory, firms will not use it”.
It continued: “All major firms now use electronic time recording of one format or another. Very many firms of all sizes use J-Codes or a close variant already. For such a firm, the effort needed to use the new bill is modest and is not expensive.
“An important point which emerged at [one meeting with London Costs Lawyers and professional support lawyers] was the difference between recording and reporting costs. The very largest firms experience a wide range of factors which affect the way they record time. These firms are unlikely to change their time recording systems as a result of this proposal. However, that is not as significant as it might seem because at its heart this proposal only mandates how time is reported when a detailed assessment is to be carried out.
“Of course the time recording needs to be sufficiently detailed to allow time reporting to comply with the rules, but that is not difficult. What these large firms may do, on the rare occasions they are involved in a detailed assessment of costs, is to use their costs drafting practitioners to take the existing time records and report the information into the appropriate format. While that means they will not take advantage of the potential saving which ought to come from recording time this way too, it means that at worst such a law firm is no worse off that at present.”
For smaller firms, the sub-committee’s view was that they should either use a time-recording system which allowed the new bill to be readily produced or “again, at the very worst, use a costs drafting practitioner to report time appropriately”.
Other factors were that using the new bill with the spreadsheet would greatly simplify the detailed assessment procedure, increase the transparency of that process and save costs. The sub-committee pointed out that at least one alternative spreadsheet was available to use instead of the one produced by the Hutton committee. “The point is not that the Hutton committee spreadsheet is problematic, the point is simply to illustrate what is available to practitioners. On Thursday 27 April, representatives of the ACL met with Birss J and provided a compelling demonstration of the ACL’s electronic spreadsheet.”