It is “too soon” to press ahead of the plan to make the new electronic bill of costs mandatory because of the “major implications” it would have for the profession.
The Civil Procedure Rule Committee (CPRC) decided last month that “the matter needed to be given careful further consideration by the Ministry of Justice and by the committee and that it was too soon for any decision to be taken”, according to newly published draft minutes of its meeting.
The decision came on the back of a consultation on the proposed new format bill of costs undertaken by the Hutton committee, which was set up to make recommendations on a new bill as called for in the Jackson report, and the voluntary pilot that started in October 2015 in the Senior Court Costs Office.
This began with a view to becoming mandatory in April 2016, but just two weeks later, the CPRC decided that this would not happen before October 2016 “at the earliest” while the views of the Ministry of Justice and HM Courts and Tribunal Service were sought.
The Hutton committee had recommended to last month’s meeting that the new bill become compulsory from October, but there is now no timeframe for the new bill to be introduced, if it is to be at all. The Law Society is going to survey its members and the Ministry of Justice will then consider the issue.
It aims to be a self-calculating, self-summarising spreadsheet document based on the J-Codes, which are electronic time recording codes to be used by fee-earners.
According to a report on the consultation that the Hutton committee submitted to the CPRC, few practitioners have yet invested in the J-Codes. “That is, judging by the feedback received, largely because of uncertainty about the new bill’s implementation and any future changes,” it said.
There was particular concern from respondents that if the compulsory pilot applied to budgeted cases in which final orders for costs were made from a certain date, many cases caught by this would have been running for a number of years without the use of J-Codes.
One consultee said a feasibility study suggested that applying the codes retrospectively would increase bill preparation time by more than 200%.
The committee acknowledged that it is unlikely Lord Justice Jackson anticipated such a high cost.
“The move from paper to electronic assessment is obviously a huge change. It will require from practitioners substantial investment in new infrastructure (for some, although it is clear that many have the infrastructure already) and working methods.
“Many have not yet made that substantial investment because they have been uncertain about the implementation of the bill of costs. At the same time, many of the concerns now raised about implementation arise from the very fact that practitioners have not yet made that investment.
“If this vicious circle is to be broken, practitioners need to know that the new bill will be introduced. For that reason we have concluded that it is not in fact possible to ‘pilot’ the bill in any real sense. Practitioners cannot be expected to make the necessary investment if there is any likelihood of the BoC being abandoned.”
The committee recommended that the new bill be introduced, without a pilot, for all work undertaken after a given date on cases which were, or could be, subject to costs management orders.
Claire Green, policy officer at the Association of Costs Lawyers and member of the Hutton Committee, said: “In light of the majority of responses from our members to the suggested new format bill, the complex nature of the bill and associated practical implications that swift implementation would have caused, we are pleased that further consideration will be given to such an important issue affecting the entire legal profession.”