51st Update to the CPR - 2
More on the 51st Update to the Civil Procedure Rules. The changes come into force on 6 April 2010.
CPD 6.4(1)(a) is amended to remove the requirement to file an estimate of costs with an allocation questionnaire in fast track matters.
This must be viewed as being a retrograde step. In future, parties in fast track matters will not know the level of costs their opponent is incurring until the pre-trial check list stage. By that time most of the damage will have been done. A party may, when faced with a large estimate of future costs, take a commercial view of the claim and settle the case early to avoid disproportionate costs. Without an estimate at the allocation stage they will not be able to do this. Equally, it will be too late for the court to make robust case management decisions to control disproportionate costs.
At exactly the same time Jackson LJ is proposing that judges take a more robust approach to case managing claims to control costs, the rules go in the opposite direction.
I understand the motivation behind removing the requirement to prepare the estimate was because the rules require an estimate to be "substantially in the form illustrated in Precedent H". It was thought the expense of preparing an estimate in this way was not justified at allocation in fast track matters. However, when was the last time a party complied with this requirement in a fast track matter (or, indeed, a multi track matter)? Invariably no more than a global figure gets provided.
A sensible rule appears to have been removed to solve a problem which did not exist.
This must be viewed as being a retrograde step. In future, parties in fast track matters will not know the level of costs their opponent is incurring until the pre-trial check list stage. By that time most of the damage will have been done. A party may, when faced with a large estimate of future costs, take a commercial view of the claim and settle the case early to avoid disproportionate costs. Without an estimate at the allocation stage they will not be able to do this. Equally, it will be too late for the court to make robust case management decisions to control disproportionate costs.
At exactly the same time Jackson LJ is proposing that judges take a more robust approach to case managing claims to control costs, the rules go in the opposite direction.
I understand the motivation behind removing the requirement to prepare the estimate was because the rules require an estimate to be "substantially in the form illustrated in Precedent H". It was thought the expense of preparing an estimate in this way was not justified at allocation in fast track matters. However, when was the last time a party complied with this requirement in a fast track matter (or, indeed, a multi track matter)? Invariably no more than a global figure gets provided.
A sensible rule appears to have been removed to solve a problem which did not exist.
posted by Simon Gibbs at
5:29 AM
5 Comments:
Simon, I've checked out the Ministry of Justice website and it's suggesting that the amendment will remove the need to provide a "detailed" estimate, but it does not appear to say that it will remove the requirement to provide a global estimate on the AQ itself as it would seem is the current practice. Therefore, paying parties will still have an idea of the level of costs just as they do now on the basis that most firms aren't currently providing the full estimate. I haven't yet seen the full rules as amended for the exact wording nor have I seen any other debate on this.
By
Anonymous, At
25 March, 2010 14:19
The full wording is available here: http://www.justice.gov.uk/civil/procrules_fin/pdf/preview/making%20document.pdf. As I read them, the requirement to provide any estimate in fast track cases goes at AQ.
By
Simon Gibbs, At
25 March, 2010 14:33
Thanks Simon. To save me ploughing through it all, if you could let me have a page number or section number I should be very grateful.
By
Anonymous, At
25 March, 2010 14:41
Page 24, paragraph 6(a)(i).
By
Simon Gibbs, At
25 March, 2010 14:45
Thanks. I've noted the changes. It basically means that the position is now the same as for the small claims track and from what I can recall costs estimates are not given. Maybe because of the limited scope for between the parties costs in small claims. I think it remains to be seen whether there is any change in the forms for fast track AQ and if not I think there may well still be the box for the global figure for costs estimates and this will still be required. I'm still not convinced this "does away with" the need for at least a global figure in fast track. What do you think?
By
Anonymous, At
25 March, 2010 18:11
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