A New Hope

For the first time in 25 years at the Bar, I am on top of my paperwork, and also have time to walk my labrador each day, for miles until she is finally exhausted and I know that she will sleep soundly on her bed at night.

These two beneficial changes have arisen from the great diminution in costs work on circuit, with many courts simply adjourning detailed assessment hearings until July or beyond. The SCCO continues to operate, but that is an exception to the current trend.

The reason for such adjournments is twofold: the first is that the priorities set for work that must be done in the county court during the emergency do not include costs cases and secondly, the county courts which were scarcely overstaffed and bursting with resources before the emergency, are often running a skeletal operation.

But costs disputes do not go away: they are currently building up behind a metaphorical dam, which at some point must burst and a failure to resolve costs disputes creates problems for that part of the legal profession which requires a steady stream of recovered costs to remain in business.

If the problem becomes too acute, solicitors firms will go out of business, harming their staff and clients, and on a higher level of consideration reducing in turn the access to justice the public enjoys, which is part of a democratic society, governed by the rule of law.

So it was with interest, that I read the recent publication of guidance, which offers a way forward and which is hosted on the Association of Costs Lawyers website:

The Association of Costs Lawyers (ACL) is hosting new guidance on the conduct of remote detailed assessments, which has been produced by a group of costs professionals with the support of the regional costs bench. It has also been welcomed by the masters at the Senior Courts Costs Office. 

The guidance can be found here

Detailed assessments are not included in the civil court listing priorities produced by HM Courts & Tribunals Service, but it is important for solicitors’ cash flow that assessments continue. The fact of upcoming DAs also encourage paying parties to settle costs disputes. 

The guidance pays particular attention to preparing e-bundles, with specific instruction on how to maintain privilege over the receiving party’s file of papers whilst at the same time creating an accessible core bundle, and how to deal with requests for Pamplin production. 

The court has to be provided with an electronic copy of the bill in an editable format – Microsoft Word for old-style paper bills or Excel for electronic bills.

If you have not read this guidance, which has been produced by the profession on a voluntary basis, then I urge you to do so.

I found it to be an impressive piece of work (to be clear: I did not draft it) and which dovetails neatly with the current interest in remote hearings.

Costs hearings are ideal hearings to be dealt with remotely, because there are no witnesses involved, and no lay clients by and large who attend.

The public always has scant interest in attending detailed assessment hearings: the sole exceptions that I can remember include a well known gentleman who wanders the floors of the SCCO with a carrier bag, and takes a great interest in listening to the arguments, and a disconcerting experience I had in Liverpool, when 30 teenagers trooped in to sit at the back of the courtroom and watch unfolding events.

The guidance deals extensively with preparation, and also the conduct of the hearing. It explains and justifies the use of the technology, and how documents, can sensibly be dealt with and provided to the court as required.

Perhaps the most interesting issue thrown by the guidance is to what extent, this approach if adopted now, or later, when things are calmer might become the new “normal”.

In particular, if the days of loading up my trolley with 3 boxes of paper have now come to an end, I would regard that as at least one “good thing” to carry forward.

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