A poll of Costs Lawyers has found that just 2% worked with solicitors who always stuck to their budgets, according to the Association of Costs Lawyers (ACL).
At a time when the success of costs management, or lack of it, is under scrutiny with plans to extend fixed recoverable costs, the research highlights how it has failed to change behaviours as was hoped.
The survey of 117 Costs Lawyers found that 72% said solicitors “sometimes” went over their budgets, while 22% said this always happened.
One reason may well be that budgeting takes place too early on in proceedings. Half (51%) of Costs Lawyers said that instead of doing it at the first case management conference as now, the hearing should be held later, once the course of the litigation is clearer.
In the meantime, solicitors should be updating their budgets if required as the case progresses. However, judges have often complained that this rarely happens, and the survey backs that up – almost a third of Costs Lawyers (32%) said they had never seen an application to update a budget, while only 18% reported that their number was increasing.
However, judges continue to be a problem. Given a set of statements on how costs management is working, the most popular (ticked by 62% of respondents) was that “it depends on which judge you’re before”, while 32% agreed that “judicial inconsistency is killing it”. Just 10% thought that judges were finally getting the hang of costs management. More positively – for Costs Lawyers at least – was that 41% said the process had brought their skills to the fore.
The survey also uncovered concern about the Court of Appeal ruling earlier this year in Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120, which suggested that the first case and costs management conference was the place to contest the reasonableness and proportionality of costs that have already been incurred – rather than just those to be incurred in the future. It had been thought that these should be left to detailed assessment at the end.
Four in ten Costs Lawyers said the ruling had made the first conference much more contested and significantly increased the amount of preparatory work as a result. The same number said there needed to be a rule change – something that is under consideration.
ACL chairman Iain Stark said: “We are more than three years into costs budgeting and the reality is that – while it has been of benefit in some instances – it has not delivered in the way that was hoped. This is, at least in part, because many solicitors have still not properly engaged with the process, even though they risk court sanctions as a result.
“The alternative, as laid out starkly by the senior judiciary recently, is fixed costs for cases worth up to £250,000 – a figure that covers the vast majority of litigation in England and Wales. Maybe this is the shock solicitors need to get serious about costs budgeting. Costs Lawyers stand ready to help them.”
ENDS
For further information, please contact: Kerry Jack, Black Letter Communications
Tel: 020 3567 1208, kerry.jack@blackletterpr.co.uk
Notes to editors:
Association of Costs Lawyers
The Association of Costs Lawyers (ACL) is a membership body representing and promoting the status and interests of Cost Lawyers in England and Wales. Founded in 1977, the Association was granted authorised body status in 2007 and is a front-line regulator, able to authorise its members to undertake the reserved legal activities of litigation and advocacy. In recognition of this new-found status, ACL changed its name from the Association of Law Costs Draftsmen in 2011. Costs Lawyers are regulated by the Costs Lawyer Standards Board. www.costslawyer.co.uk
The term ‘costs draftsman’ denotes an unregulated and unqualified person operating in costs and those who instruct costs draftsmen have no recourse to either the Legal Ombudsman or the Costs Lawyer Standards Board.