Fixed costs should not be extended until there is proper evidence of what impact reforms such as budgeting have had so far, lawyers argued today.
Barrister Andrew Hogan (pictured) called for an ‘evidence-based’ approach to reform, and highlighted that some district judges are still finding ways to avoid budgeting.
Hogan, who was speaking at the Association of Costs Lawyers’ annual conference, said: ‘There is a need for evidence-based policy. You see this in economic policy; the Treasury has very sophisticated economic models to assess the effect of changes it makes.’
Hogan, of Ropewalk Chambers, added that while the judiciary may see budgeting as the ‘holy grail’ to achieve proportionate costs, defendants such as the NHS Litigation Authority were likely to see it as a ‘big stick’ with which to beat down opponents’ costs.
‘An evidence-based approach gives you a way of drawing conclusions that are not so shaded by sectional interests,’ he said.
The barrister noted that despite Lord Justice Jackson having concluded in his May 2015 Harbour lecture that budgeting ‘works’, his own experience was that there had been a worsening of judicial inconsistency in applying budgeting.
He said: ‘Some courts deal with the budgeting and directions together, and some do them separately. So are we saying, this is the budget, and we will cut our cloth with the directions according to what there is to spend? Or are we saying, these are the directions needed for a [fair] trial, and then this is what it should cost?’
Hogan added that there was a problem with the amount of time being spent on budgeting. He said he ‘dreaded’ appearing before one particular district judge, ‘because every costs management hearing listed for 90 minutes seems to take about three hours, or beyond’.
The barrister said district judges were still finding ways to avoid costs budgeting altogether, for example by asserting that they have discretion over whether or not to make costs management orders; or by concluding that a higher value case is no more complex than a fast-track claim, and directing it to be dealt with on the fast-track basis, which is exempt from budgeting.
‘In some county courts the value of the fast track seems to have increased to £75,000,’ he said.
Steven Green, lead partner in the costs-drafting team at Irwin Mitchell, echoed Hogan’s call for evidence-based reform – with the ACL planning a survey of its members to provide data.
He said: ‘How can [law firms] put a business plan together for the next three to five years? How can you know how many people to recruit? The sands are constantly shifting and the tectonic plates moving.
‘The government needs to get some data and take its time.’