It is perhaps amusing to recall (if you’re as sad as us) that when costs budgeting was introduced, the admirable intention was that the proportionality of the process would be significantly contributed to by costs budget hearings being dealt with by telephone or on the papers only.
In practice very few are conducted by telephone and we have as yet had no experience of a Court ordering the setting of budgets to be dealt with on the papers only. Instead we have seen the proliferation of “Shall not be heard by telephone” paragraphs in CMC Orders.
So the practice of Courts routinely listing budgets to be heard in person has become commonplace, and so, predictable? Alas, no. The latest development is the lottery of whether or not your Costs Lawyer will be permitted to speak. Let’s be clear, this is not a rights of audience issue. The Judiciary were well accustomed to hearing humble Costs Draftspersons long before the recognition of the Association of Cost Lawyers as a professional body and the creation since of the now widely recognised title of ‘Costs Lawyer’. Indeed, amongst our numbers we count Grade A Solicitors who have suffered similar gags on addressing the Court.
For reasons yet to be fully explained, some Judges in some Courts have taken it upon themselves to entirely exclude costs professionals from the advocacy element of the budgeting process, and ruled that they will only hear from the conducting fee earners (though it appears some Courts have no issue being addressed by Counsel, if they have been engaged to act in the main action – even where their involvement thus far may have been limited to drafting the particulars or a defence only).
More recently, Courts such as Nottingham have issued a blanket directive that the fee earner only is expected to address the Court on costs. This is at least helpful because in these instances we are able to plan in advance by undertaking all budget negotiations on behalf of our client, agree budgets or phases where possible, and provide a brief for our client to assist them at the costs budget hearing.
Other Courts (and for that read: some Judges in some Courts) have provided specific directions that the fee earners must attend the costs budget hearing to address the Court. Again, where such a direction has been given in advance, we are able to attempt to negotiate budgets and prepare a brief for our clients.
Then there are Courts such as the Royal Courts of Justice, where to date the Masters have been very welcoming of the input of Costs Professionals.
The current unknown factor is the remaining regional Courts nationwide where we have begun to observe the practice described above of only permitting those conducting the case to speak, and in circumstances where there has been no prior warning whatsoever that such an approach is to be adopted. As a result we encourage and indeed assist clients in contacting the Court to clarify whether the appointed advocate dealing with costs will be allowed to speak. Even this is often a fruitless task though, given the cutbacks on Court staff and opening hours, and the near impossible task of asking a Judge to find the time to consider your enquiry.
One trend we have noticed, and this includes Nottingham, is that Senior Judges continue to have no issue being addressed by costs professionals when it comes to the issue of costs budgets. In our view this approach, as widely adopted by the RCJ, is logical. Costs budgets are only required on multi-track cases. Multi-track cases are by their very nature complicated and usually of high value. Such cases typically require the attention and conduct of senior fee earners, often at rates in excess of guideline rates. Compelling such fee earners to deal with all aspects of budget management is simply not proportionate and so permission to fully delegate that task to a costs expert at much lower rates is both reasonable and logical.
We ought to stress that when it comes to case management directions, clearly those conducting the case are best placed to address the Court. However, those who have drafted and negotiated the budgets remain best placed and most economic with respect to the hearing of budgets.
For now, we simply recommend that for any CMC or hearing where budgets are to be dealt with it would be prudent to contact the Court or assigned Judge where possible to secure confirmation that your appointed cost advocate will in fact be permitted to address the Court. That will be a case of ‘easier said than done’ but we can but try…