Leaving aside the rise of the robots and developments in AI, for the moment at least, let us consider the current incarnation of the electronic bill of costs a little more closely and how it may be attacked by well crafted Points of Dispute.
Any electronic bill of costs is likely to be created in Excel, which is the industry standard programme. It has to be said that Precedent S, is not the most user friendly spreadsheet: indeed it has serious limitations, including a lack of ambition.
It would have made much more sense to integrate Points of Dispute and Replies into the same spreadsheet as a matter of course, to enable comparisons to be made of the parties respective cases and also to facilitate “wargaming” what could be the result at a detailed assessment, testing and evaluating various scenarios.
But working with what we have, I think that tabs 9, 11 and 12, are significantly underused by practitioners. It is these tabs which facilitate the first interrrogation of a bill, when one is trying to see where the money has been spent and the costs incurred. One can then move to the main sheet, in order to use the filtering function to start to draw together a more detailed analysis.
This detailed analysis can be enlivened by the use Excel-fu. In particular if you know what you are doing, through the deft use of pivot tables, pie charts and graphical interfaces, you can create visual representations of the time and how it has been spent.
Even if your mastery of the software does not extend to these heights, useful tricks for filtering include using the “text filtering” function to explore what keywords will feature again and again in the items; “review” “preparation and perusal” “updating” and similar time hallowed phrases. Conditional formatting allows you to colour in sections of the workbook, to aid understanding.
But these are matters of detail. What counts when disputing a bill is to consider the strategy and tactics the can be deployed when drafting Points of Dispute to try to achieve a maximal effect. The starting point is always what is the reasonable and proportionate sum that the paying party accepts is the minimum they should have to pay?
Then you can begin by working back from that, deconstructing how that figure can be reached. The drafter needs to understand the theory of “anchoring”, focus on where the money is in the bill and can usefully consider hourly rates and documents, as the key targets as they will usually account for the bulk of the realistic scope for discounts.
Other common vulnerabilities will include a bill that has a cast of thousands, excessive inter fee earner communications, items that are properly solicitor-own client charges, funding costs and signs that padding or “time dumping” may have taken place.
I rarely draft Points of Dispute, but when attacking an electronic bill of costs it can be very important to bear in mind the guidance in the Senior Courts Costs Office Guide which provides at page 54:
Points of Dispute prepared in response to electronic bills should, so far as practicable, categorise the items objected to (for example by reference to particular Legal Team Members, tasks, activities, or communications) so as to enable the court to use the bill’s filtering function to isolate those items and make decisions quickly and efficiently. If the points of dispute do not do this, the court may, in the exercise of its case management powers, order them to be redrawn to avoid a disproportionately long and expensive assessment exercise.
There is a flexibility in the electronic bill, of which full use should be made. And in particular the choice of filters, should be strategic: sometimes they can be drawn on an Activity Code basis (not least because A10 is what used to be called Documents) but sometimes it can be more advantageous to focus on particular legal team members. This can have surprising results, with in one recent case, someone apparently putting in 24 chargeable hours in 1 calendar day.
Most Points of Dispute are far too long. They are meant to be short and to the point. A lot of drafters produce reams and reams of cut and paste material, which they include in Points of Dispute for provisional assessment purposes. They cite caselaw but don’t provide the assessing judge with copies of authorities. And they fail to grapple with the basic point that the art of written as well as oral advocacy is to be as simple as possible.
All lawyers can benefit from thinking critically of their own drafting. In my own work I strive for what is termed “Plain English”. It is a campaign that did not originate with me and is of longstanding. You can read more about the campaign here: https://www.plainenglish.co.uk/
The key principles of writing in Plain English are very straightforward. They may be summarised as follows:
-Write in short sentences of 15 to 20 words.
-Use active verbs: for example “Andrew wrote a blog” not “The blog was written by Andrew”.
-Use “you” and “we”.
-Use simple words instead of jargon.
-Don’t be afraid to give instructions.
-Avoid abstract nouns. You discussed things. Not you had a “discussion”
-Use lists(!).
-Be concise.
And, I would suggest, focus on your Plan A.