Lawyers should consider asking to waive costs budgeting if it is ‘causing an injustice’, a leading judge has advised.
Master David Cook (pictured), a master of the High Court, Queen’s Bench Division, said some parties are having to wait up to nine months for their costs budgeting hearing.
Cook told a seminar at the Association of Personal Injury Lawyers conference last week that the delays have caused ‘injustice’ which has prevented victims from getting compensation due to them.
‘Maybe you should ask the court to waive costs budgeting if it’s causing an injustice,’ he said.
A packed seminar room indicated the importance of case management to members of the profession, with new Civil Procedure Rules having been introduced in April 2013. Since then, critics have lined up to highlight problems with the new system. Indeed, such was the fallout from the Mitchell judgment that the subsequent Denton judgment was used some eight months later to clarify its interpretation.
Cook urged parties to discuss costs with their opponents up to 10 weeks before the first costs management hearing. He said discussions with the other side were the ‘most important’ element of the process.
The judge said he has overseen 220 costs budgeting hearings since the Jackson reforms came into force in April 2013. Of those, just 10 saw both parties agree on a budget.
‘In those 210 hearings [ending without agreement], a very large number of advocates seem to be coming at the process in the wrong way,’ he said. ‘You have to ensure you are properly prepared. If not, your chances of justifying the sums you’re asking for will diminish.’
Cook said that judges are there to ensure costs are kept proportionate but cannot set hourly rates or counsel fees.
'One of the excessive areas of spending is witness statements – you see large sums of money being set and say to the advocate "why?",' he said. 'You get the same hackneyed responses of "it’s a complex case" or "we’ll have to speak to the client". But you have to justify it.’
Cook also urged lawyers to be realistic in their costs submissions, particularly in front of specialist judges.