Has the indefinite postponement of the new format Bill of Costs signalled the end for budgeting as we know it, underlined now with the forceful drive towards all encompassing fixed costs? Budgeting was good on paper, but without the court being invested in both resources and a consistent approach, it was surely doomed from the start!
Are fixed costs a “sticking plaster” to cover the failings in costs budgeting, by now using it as a vehicle to apply fixed costs and to stay within the dwindling resources received by the civil court system? Using budget phases to fix costs is surely benchmarking? Some may remember that Lord Woolf raised Benchmark costs in chapter 7 of his final report. This resulted in Senior Costs Judge Peter Hurst undertaking a consultation and producing a report dated October 2001. APIL responded in June 2001 and their concerns then can be echoed now in the face of multi-track fixed costs.
In essence, can the average costs for a phase in a building case be the same as in a personal injury case? Will a lawyer tailor his work to the fixed costs he knows he will recover, rather than do the actual amount of work needed? Peter Hurst suggested there should still be discretion but on what information would that be based? Obviously Benchmark costs did not find favour and went no further.
Continuing to draw a parallel between benchmarking and fixed costs, if there was discretion how much work would be involved to successfully obtain this and would this obviate any perceived benefit of a fixed costs regime in the first place?
Rupert Jackson says of any fixed cost regime “What we do not want to have is a series of separate grids for different types of cases. There should be single fixed costs grid for all multi-track cases up to 250,000”. Surely one size cannot fit all and I agree that any system that attempted to cover all the variables would be so complicated to make it unmanageable?
Most importantly, what of the implications for access to justice? Will fixed costs provide adequate remuneration for lawyers to conduct cases with suitable resources to achieve the best possible results for clients (other than those clients who have the deepest of pockets)? Would fixed costs simply erode the overriding objective, which at CPR 1.1(2)(a) seeks to ensure that “the parties are on an equal footing”?
I may be harking back to my youth, but surely things were better pre-CPR!