Costs Management

Costs and Case management and the first case management conference

Contents in relation to the Technology and Construction Court

The topics include the following: The Fixing of the First case management conference, The Case Management Information Sheet and Other Documents, Checklist of Matters likely to be considered at the first case management conference, Further statements of case, Scott Schedules, Agreement Between the Parties, Drawing Up of Orders, Further case management conference, and the Permanent Case Management Bundle.

Costs Management in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]Following a pilot scheme in the Technology and Construction Court and elsewhere, Section II of Civil Procedure Rules 3 introduces the new regime of Costs Management. This implements the recommendations of the Jackson Report. The rules now require each party to file a costs budget in the prescribed form at the outset of the litigation (before the first case management conference). Although not expressly stated in Practice Direction 3E, the budgets should be discussed between the parties prior to the budgets being filed with the court. The Technology and Construction Court will fix the first case management conference sufficiently far ahead to enable this to be done. At the first case management conference the Technology and Construction Court will consider the costs budgets. If they are agreed, the Technology and Construction Court will make an order recording the extent to which the budgets have been agreed: see Civil Procedure Rules 3.15(2)(a). In such cases the parties’ costs will be subject to detailed assessment as in the pre costs management regime. The penalty for failure to serve a budget is draconian: the party will be limited to recovering the Technology and Construction Court fees only (see Civil Procedure Rules 3.14), as applied by the Technology and Construction Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537. Where a budget or parts of a budget are not agreed, the Technology and Construction Court will consider the budget and make such revisions as it thinks fit. These will then be recorded in a Costs Management Order: see Civil Procedure Rules 3.15(2)(b). Precedent H is the form for a costs budget. This divides the litigation into different phases, and the Technology and Construction Court will consider the amount of the fees and disbursements for each phase separately. Costs budgets are to be supported by a statement of truth (see Civil Procedure Rules 3EPD.1). Once approved, the costs shown in each phase of the costs budget will usually be recoverable on a detailed assessment if they have been incurred. Recovery will not usually be permitted where a party has overspent its budget for a particular phase, even though it may have underspent on another phase. The Technology and Construction Court will not depart from the approved figure in the budget unless satisfied that there is good reason to do so: see Civil Procedure Rules 3.18. Precedent H allows a party to provide an allowance for certain contingencies, but these must be set out in the budget and the reason for them given. It is open to a party to apply to the Technology and Construction Court to amend its costs budget if there is good reason to do so. In cases where items in the costs budgets are in issue, it of great help to the Technology and Construction Court if counsel can prepare a brief summary of the differences (if necessary, there is available on the market an Excel programme that can do this). The parties should note that a different regime applied to cases commenced before 1 April 2013: see PD51G (Costs Management in Mercantile Courts and Technology and Construction Courts – Pilot Scheme). For cases commenced on or after 1 April 2013: see Civil Procedure Rules 3.11-3.18 and PD3E, including the current £2 million cap (a revised Precedent H has been in force since 1 October 2013). For cases commencing after 22 April 2014 the costs management regime will apply where the value of the case is below £10 million: see Civil Procedure Rules 3.12 (as amended).