Storm clouds have been gathering above the heads of costs lawyers in recent weeks and months, as the impending implementation of the costs budgeting reforms draws ever closer – J Day (cue thunder claps!). But in keeping with a change in the seasons, costs lawyers of a sunny disposition might find something to smile about under the new regime.
While costs specialists’ roles will inevitably change, that is not necessarily for the worse. The introduction of fixed recoverable costs for volume, low-value cases and the reduction of publicly funded work will mean that costs lawyers won’t be needed for these areas of work, but on the flipside there will be an increased need for costs’ lawyers costs management, consultancy and advocacy skills.
Firstly the budget preparation, and crucially, monitoring requirement will no doubt prove tricky over the next few months as we familiarise ourselves with the new system – it will be a far from straightforward exercise given that budgets will be set by phases and that each will need to reviewed regularly.
Costs lawyers must work alongside their solicitor clients to meet the new costs budgeting requirements, scoping out the draft budgets for each phase of litigation and highlighting when actual costs are closing in on budgeted costs to manage the monitoring requirement.
The arguments that costs lawyers deal with retrospectively at detailed assessment on a daily basis – grade of fee-earner used, hourly rates, use of counsel and any experts etc – will be dealt with prospectively at the initial costs management hearing under the new system. And it isn’t as though costs lawyers will then need to go back from whence they came once the budgets are set; there is the other side’s budget to consider and advice to be given in matching actual to budgeted costs at each phase of the litigation.
Out of this, the advice that costs specialist can give to guide their clients through the plethora of changes should prove invaluable.
Costs lawyers’ roles may well become more based on analysis and advocacy from next month, but that isn’t necessarily a bad thing as it gives an opportunity for the value of costs expertise to be truly recognised. Now if only the sun would show its face…