2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COSTS BUDGETING

This year has been relatively quiet on the costs budgeting front.  There have been some rule changes and two cases which highlight how difficult it is to appeal a costs budgeting decision.

JULY:AN OFFER AS TO COSTS DOES NOT BECOME THE BENCHMARK FIGURE.

In Gray v Commissioner of Police for the Metropolis [2019] EWHC 1780 (QB) Mrs Justice Lambert dismissed the claimant’s appeal from cost budgeting decisions.    The judgment contains important observations about the nature of cost budgeting hearings and appeals on budgeting matters.  In particular the court is not bound to accept an offer on costs made by a party and that the offered figure does not become a “benchmark”.   It means a party must think very hard about not agreeing a costs budget, you cannot assume that the offer you opponent is making will be accepted, or increased,  at the budgeting stage. A judge is perfectly within their rights to award a lower figure for that stage.

…the figure offered by the Defendant was not the proportionate figure. It goes without saying that, if a Defendant (or any party) makes an offer, that offer does not become the benchmark below which the cost cannot be budgeted”

Appeal on Costs budgeting: claimant’s appeal unsuccessful: an offer as to costs does not become the benchmark figure.

OCTOBER: NEW RULES

The 109th (109th!) update to the rules which made it clear that the CCMC stage was treated as incurred costs.

Quick reminder of new costs budgeting rules coming into court today: incurred costs include the costs of the CCMC.

NOVEMBER: AN UNSUCCESSFUL APPEAL AGAINST A COSTS BUDGETING DECISION

In   Easteye Ltd v Malhotra Property Investments Ltd & Ors [2019] EWHC 2820 (Ch) .  Nugee J refused the claimant’s appeal against the District Judge’s decision not to budget for the use of leading counsel.   The phase in the budget did not prevent the claimant instructing leading counsel, if they so wished.   The reasons given, although brief, were adequate for the purpose of the budgeting exercise.  The court was also sceptical of an argument that there were inadequte reasons.

“It is not, in general, conducive to the efficient and cost-effective dispatch of costs management decisions if every part of those decisions has to be justified with extensive reasons like a judgment after trial”

An unsuccessful appeal on a costs budgeting decision: Should a QC be allowed – or is that a leading question?

DECEMBER: COUNSEL’S BRIEF FEE NOW IN THE TRIAL PREPARATION PHASE OF THE BUDGET

A post in December highlighted a change that appeared to have gone unnoticed by many.  Counsel’s brief fee is now in the trial preparation phase of the budget. The refreshers stay within the trial stage.

Counsel’s brief fee now part of the trial preparation phase.