Rule changes pave the way for the Electronic Bill of Costs…

The 92nd update to the Civil Procedure Rules with The Civil Procedure (Amendment) Rules 2017 includes changes to Part 47 – Detailed Assessment Proceedings. The amendments contained in the statutory instrument came into force on 1 October 2017. The Practice Direction Making Document supporting the rule changes is to be published shortly.

Rule 47.6 is amended to provide for the filing of electronic and/or paper versions of the bill of costs, if appropriate, and to direct users to the relevant practice direction supplementing Part 47 (Practice Direction 47). The majority of amendments relating to the New Bill of Costs are made to Practice Direction 47 and will be published as part of the Practice Direction Making Document supporting the rule changes.

The changes relate to the information which needs to be provided under CPR 47.6 and the changes are set out in BOLD below.

47.6 (1) Detailed assessment proceedings are commenced by the receiving party serving on the paying party –
(a) notice of commencement in the relevant practice form;
(b) a copy or copies of the bill of costs, as required by Practice Direction 47; and;
(c) if required by Practice Direction 47, a breakdown of the costs claimed for each phase of the proceedings.
(2) The receiving party must also serve a copy of the notice of commencement, the bill and, if required by Practice Direction 47, the breakdown on any other relevant persons specified in Practice Direction 47.

The current Practice Direction 47 provides for the following information to be provided when serving a Bill of Costs:

5.2 The receiving party must serve on the paying party and all the other relevant persons the following documents —
(a) a notice of commencement in Form N252;
(b) a copy of the bill of costs;
(c) copies of the fee notes of counsel and of any expert in respect of fees claimed in the bill;
(d) written evidence as to any other disbursement which is claimed and which exceeds £500;
(e) a statement giving the name and address for service of any person upon whom the receiving party intends to serve the notice of commencement;
(f) if a costs management order has been made, a breakdown of the costs claimed for each phase of the proceedings.

The changes to CPR 47.6 are in preparation for 6th April 2018, the date the new Electronic Bill of Costs is rumoured to become mandatory in all cases – not just for cases where “a costs management order has been made”, as may have been assumed. It was, after all, intended to be a new ‘model Bill of Costs’ applicable in all cases (now subject to the particular provisions of the new practice direction when it is published).

This was an issue clarified by Alexander Hutton QC at a recent costs conference and it would make sense to make the Electronic Bill of Costs applicable to all cases since, although costs budgets are required in claims up to a value of £10 million (for claims issued after 22.04.14), there is scope within the rules to costs manage cases that exceed that value.

CPR3.12 (1A) “This Section and Practice Direction 3E will apply to any other proceedings (including applications) where the court so orders”.

The Courts have already shown a willingness to costs manage cases where the value of the claim exceeds the ceiling for automatic costs budgeting e.g. CIP v Galliford Try [2014] EWHC 3546 (TCC); Various Claimants v Sir Robert McAlpine & others [2015] EWHC 3543 (QB) and Signia Wealth Ltd v Marlborough Trust Company Ltd and Another [2016] EWHC 2141 (Ch).

It is better to be prepared for that eventuality than to face having to manually ‘code-up’ thousands of time entries after the event.

It seems that the lawyers who spend all their time on complex, high value commercial litigation will not escape J-Codes after all.