NEW RULES COMING INTO FORCE: COSTS BUDGETING AND QADER RESULT CODIFIED
The Civil Procedure (Amendment) Rules 2017 were made on the 3rd February. Most of these come into force on the 6th April 2017. The new rules are available here
The amendments set out below may be perplexing. However the aim is to overturn the comments made by the Court of Appeal in SARPD Oil International Limited v. Addax Energy SA and another  EWCA Civ. 120. Basically the Court of Appeal said that the costs budgeting hearing should be the time for a full scale scrap about incurred costs (which are not budgeted) being reasonable and proportional. The new rules are designed to stop the full scale argument and provide for the judge to record his or her views on incurred costs without the need for an all out “assessment”.
The rules now specifically provide that the court can make comments about incurred costs. Rather than record any agreement about the “budgets” the court records agreements about “the budgeted costs”, incurred costs are not budgeted costs. It can also record the extent to which any incurred costs have been agreed.
This reverts to the position that had prevailed prior to SARPD that the judge would simply be asked to note that the incurred costs were disproportional and would record this. (In many courts this practice continued with judges and Masters simply ignoring the comments made in SARPD in any event).
THE RULE CHANGES
(10) In rule 3.15—
(a) in paragraph (1), after “incurred” insert “(the budgeted costs)”;
(b) in paragraph (2)—
(i) in sub-paragraph (a), for “budgets” substitute “budgeted costs”;
(ii) in sub-paragraph (b), for “budgets or parts of budgets” substitute “the budgeted costs”; and
(iii) at the end of sub-paragraph (b), insert— “; (c) record the extent (if any) to which incurred costs are agreed”; and
(c) after paragraph (3), insert— “
(4) Whether or not the court makes a costs management order, it may record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings.”.
(11) In rule 3.18— (a) in sub-paragraph (a) —
(i) for “budget” substitute “budgeted costs”; and
(ii) at the end, omit “and”;
(b) in sub-paragraph (b), for “budget” substitute “budgeted costs”; and
(c) at the end of sub-paragraph (b) insert— “; and
(c) take into account any comments made pursuant to rule 3.15(4) or paragraph 7.4 of Practice Direction 3E and recorded on the face of the order”.
FIXED COSTS END WHEN THE MATTER ENDS THE MULTI TRACK
The new rules now specifically provide that fixed costs cease to apply when an action is in the multi track, giving force to the Court of Appeal decision in Qader and others v. Esure Services Limited  EWCA Civ 1109
SANCTIONS FOR NON-PAYMENT OF TRIAL FEES FOR CLAIM AND COUNTERCLAIM
There are detailed provisions for the procedure when a claimant or defendant fails to pay the trial fee.
DETAILED PROVISIONS FOR AARHUS CONVENTION CLAIMS
There are detailed provisions for the parties to adopt when claiming, or denying, that the action is an Aarhus Convention claim.