Yesterday I wrote about the issues posed by the fact that the costs of budgeting (the 1% and 2% allowed for Form H and budgeting) now cannot be assessed at the budget stage.  I suggested the budgeting order should read “the budget is X plus the costs of budgeting”. I had an email this morning from Costs Lawyer Sue Nash.


“Re your recent post about the costs of budgeting changes, I obviously agree about the changes now in force but I can’t see why the 1% and 2% – which are based on what is presented to the court (either as agreed or as determined at a CCMC)  – can’t be put on the face of page 1 of Precedent H.

They are out-with the budget itself and effectively become subject to agreement or DA in the same way as are all the figures in the incurred costs columns. In the meantime they are part of showing each side’s maximum costs liability which is useful for making ‘reserves’ and/or indicating adverse costs protection needed via ATE or TPF.”


Sooner or later (hopefully sooner) a standard practice will develop. My concern is that putting that 1% and 2% figures on Precedent H is not an effective use of time. However these are hardly difficult calculations to make.  The important thing is that there is a consistency of approach from the courts which will make agreement or assessment as simple as possible. From the point of view of the receiving party it is important that these figures are not overlooked when costs are assessed or agreed. From the point of view of the paying party it is important that they are assessed on the actual costs (as agreed or assessed) and not the figures in the budget (where there could be major differences, particularly if incurred costs are reduced).