Tobias Haynes believes solicitors do not properly appreciate the importance of getting their costs statements in on time in the tough new compliance environment.
Two long-forgotten paragraphs of the Civil Procedure Rules 1998 (CPR) appear to have sprung back to life in the post-Jackson and post-Mitchell legal landscape, although many practitioners appear not to be privy to these vital tools in the new age of compliance.
These paragraphs may simply be overlooked by many practitioners, but at their peril, as they may alter the course of litigation forever if used properly. Those who do use these provisions correctly will reap the rewards.
The first is paragraph 9.5(4)(b) of Practice Direction 44 of the CPR, which stipulates that parties must file and serve a statement of costs no less than 24 hours before a fixed hearing. The second is paragraph 9.6 of Practice Direction 44 of the CPR, which allows a failure to comply with paragraph 9.5(4)(b) to be taken into account regarding which order should be made about costs, to the extent that costs may be disallowed in their entirety, or significantly reduced.
Over time these provisions have been forgotten or simply disregarded; it has become common practice for parties simply to exchange their statements of costs on the same day as the hearing. The result has been many nasty high-costs surprises at the very last moment; with little or no chance to respond properly in any summary assessment of costs. This is a demonstration of the lax culture that prevailed pre-Jackson and pre-Mitchell.
The CPR has been radically overhauled, and a strong emphasis placed on proper compliance with court orders, the CPR, practice directions and so on. This new culture fosters a sense of fear to ensure that deadlines are met promptly and court resources utilised properly. It seems to be working (putting aside the evident increase for relief from sanctions applications clogging up the civil justice system – but, that is a topic for another day).
Why then, does everyone fear other aspects of the CPR but ignore the paragraphs to which I have alluded? This is bizarre. The most important aspect of these provisions is that they ensure a statement of costs must be filed and served no less than 24 hours before a hearing.
Some litigators have taken due note, with the very dangers highlighted above recognised in the recent case of Devon County Council v Celtic Bioenergy Ltd  EWHC 309 (TCC). In Devon, it was made clear that a statement of costs filed served less than 24 hours before a hearing (or indeed not served at all), without any reasonable excuse for the default, will result in a significant costs penalty for the defaulting party.
So get your statements of costs in no less than 24 hours before a hearing. The defaulting party will be left wondering what happened, when they throw a hefty statement of costs across to you in the courtroom, yet the judge awards costs in your favour despite your application being unsuccessful.
Tobias Haynes is a litigation paralegal at Regulatory Legal Solicitors in Birmingham