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Budgeting v detailed assessment – it’s a toughie, admits rule committee group

Handcuffed: is the costs judge’s discretion fettered?

The question of whether and to what extent the costs budgeting regime fetters the powers and discretion of the costs judge at detailed assessment is a difficult one that needs to be put out to consultation, the rule committee was told earlier this month.

The issue has come to the fore following the recent ruling of District Judge Lumb, a regional costs judge, in Merrix v Heart of England NHS Foundation Trust [2016] EWHC B28 (QB).

In this, he held [1] that his powers on detailed assessment were not fettered even though the receiving party had come in within budget.

He said that though there was no direct authority on the relationship between the two, there were numerous examples in the CPR and case law to support the contention that cost budgeting was not intended to replace detailed assessment.

The issue was raised by the Civil Procedure Rule Committee’s (CPRC) sub-committee which recommended changes [2] to the costs management regime as a result of the Court of Appeal’s ruling in SARPD earlier this year.

In its paper to the CPRC, the committee – chaired by Master Roberts – said: “On the one hand, there is a view (which is that of the Judicial College) that if costs are claimed at or below the figure approved or agreed for that phase of the budget, then they should be assessed as claimed without further consideration.

“The budget fixes the amount of costs recoverable and the costs can only be reduced if the defendant paying party satisfies an evidential burden that there is good reason to depart from the figure in the budget.

“There is a contrary view that the cost judge’s powers and discretion are not fettered by the budgeted figure for that phase and the budget is but one factor to be considered in determining reasonable proportionate costs on assessment of costs under CPR part 47. This view was accepted by Lumb DJ in Merrix.

“We have flagged up this important issue but have not sought to resolve it. Firstly, it was not within our remit. Secondly, there is a strong argument that an issue of such fundamental importance should be the subject of public consultation. Thirdly, we could not reach a unanimous decision.”

It is not yet known what the CPRC decided to do.