The time of changes

I have always been a fan of autumn. The season of changes, it is pleasingly full of falling leaves, muddy boots, and crumpets with bramble jelly by the fire.

In keeping with the autumnal zeitgeist last month I moved rooms in chambers, vacating the room that I have had for 18 years and moving to new quarters on the first floor.

I also sadly said farewell to a chair that has been in my room for the same period of time. Never sat in by me, it has been a useful repository for books, umbrellas, papers and sundry pupils for nearly 2 decades. Here is a picture of it:

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It was one of a matching pair, but its twin vanished long ago, and only recently did I become aware of where the missing chair ended up:

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Yes, my chair was stolen, and it seems ended up as a prop in the torture scene in Casino Royale.

I was in turn tempted to keep the remaining chair, in case it came in useful in the future eg: to encourage defaulting solicitors to pay the fees that they owe me.

But life is too short for such indulgences, the chair has been thrown on the scrap heap and so will some certainties in the world of costs, as the pace of change is now accelerating as we move towards 2017.

The three big issues that I identify for the next year, are the imminent consultation on fixed fees for clinicial negligence cases likely to be limited to those cases with a value of up to £25,000, the impending Court of Appeal case(s) on the proportionality test and the introduction of the new Bill of Costs.

I have selected these three reforms because each of them has the potential to be systemic in their own right and in the wider consequences they have for the law and practice of costs.

Fixed costs in clinical negligence cases will undoubtedly affect the economics of practice in that area, but will also act as a template for further reform, both in terms of the upward expansion of fixed costs in clinical negligence, but also in other areas which at the moment have pleaded special privilege in terms of their complexity or the need for a bespoke award of standard basis costs.

The proportionality appeal(s) will crystallise the correct approach to proportionality for the lower courts, and determine the volume of costs litigation in the next few years: if the scope for a reduction is broad and sweeping, far more costs disputes will be litigated than at present. Conversely, if the scope is small, then the retention of the principle of proportionality at all, is thrown into question, because it can legitimately be asked what does it add to the criterion of reasonableness?

The digital bill has been slow in its evolution, greeted with a lack of enthusiasm by the profession, but has the potential to greatly erode one of the profit centres of the costs lawyers profession, the drawing of bills. Its arrival fits with the move to digitisation.

It would require enormous expenditure to implement the firm wide systems which must underpin it and its potential complexity, could in turn affect the volume of costs litigation as parties grapple with its introduction.

Interesting times ahead.

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“Do you expect me to talk, Le Chiffre?”

“No Mr Bond, I expect you to cry.”

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