Tactics emerge in costs budgeting

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Some interesting points emerged in relation to costs budgeting at IBC Legal’s Impact of Jackson conference last week. By now, many litigators will have had to knuckle down and complete Precedent H – the form through which they must provide the opposing party with an estimate of their costs in multi-track claims.

The secret to successful budgeting is allowing yourself flexibility to amend the budget at a later stage, by making careful use of the facility to include ‘assumptions’ on the budget form. Firms are now beginning to set up templates for their Precedent H forms, and what to include in the assumptions section is one of the key issues. Rather than going it alone, some firms have been swapping ideas about the best approach to take.

David Greene, a partner at Edwin Coe, said his firm had been comparing notes with Simmons & Simmons; and he recommended ‘cribbing’ from other firms as a good way forward.

Generally, the advice is to make the best use that you can of the ‘assumptions’ column, to give more flexibility later on. But this does throw up problems.

Greene raised the question of what to do where a client might be susceptible to a security for costs application. Should a claimant lawyer list that as an assumption? Strictly, you should – but would it be a good tactical move?

Assumptions also pose problems on the defendant side of the fence. One delegate from a defendant personal injury firm raised the question of whether the potential use of surveillance evidence needs to be included in the budget. That can be a big expense, but, tactically, mentioning it in the budget would tip the claimant off that they were going to be watched. Leaving it out of the budget would not prevent the defendant from using surveillance, but it would prevent the cost of that from being recovered if the defendant wins.

These are the kinds of nitty-gritty issues that lawyers on both sides must now start grappling with. While law firms won’t want to give away tactical secrets to their competitors, finding out what approach – or even better, what wording – other firms are using could be a very valuable source of comfort.