The electronic bill of costs is here to stay and the Senior Costs Judge is keen to extend its use, starting with Court of Protection bills, a roundtable of specialist judges, costs lawyers and solicitors has heard.
The bill has been compulsory for most multi-track cases for nearly a year and the consensus at the roundtable organised by the Association of Costs Lawyers (ACL) was that the electronic bill has a huge deal of potential but is being held back by a resistance to change.
The Senior Costs Judge, Andrew Gordon-Saker, said his experience has been “pretty positive”, with problems caused more by lawyers than the bill itself. “It is certainly the way to go”, he said and explained that he was keen to extend its application to Court of Protection bills.
“At the SCCO, we get over 8,000 Court of Protection bills per year. Now that we have electronic filing, it is crazy that somebody files a bill electronically, and we have to print it off for somebody to assess, and then scan it back on. I also think Court of Protection bills lend themselves to an electronic format. After that, we can look at legal aid bills, and solicitor and own client bills.”
Judicial review was another possibility, the judge said, and indeed: “There is no reason why it cannot become universal once everybody is happy with it and used to it.”
His colleague at the Senior Courts Costs Office, Master Colum Leonard, added: “My experience has been good… The feedback from costs officers, who are doing the smaller bills and seeing more of them on a routine basis, is also very positive, even from those who I think initially found it quite intimidating.”
Concerns included the need to improve the way fee-earners record time in the first place to feed into the bill, a lack of training for judges and practitioners in Excel – or other XML spreadsheet programs – and a willingness by some judges and lawyers to dispense with the electronic bill and use the old-style paper bill.
His Honour Judge Chris Lethem, who sits on the Civil Procedure Rule Committee, said: “I am hearing anecdotal evidence that, whilst regional costs judges will put their foot down, some other judges will show no resistance to an application to have an old‑style bill. Perhaps they are led by parties that do not want the electronic bill… It is teaching old dogs new tricks.”
William Mackenzie, a Costs Lawyer and head of the London costs team at DWF, which hosted the event, said: “The issue is that fee-earners do not have any interests in costs. If somebody says, ‘Let’s dispense with this’, any defendant fee-earner is going to think, ‘Well, it doesn’t really make a difference to me. I’ll agree to that’. Any claimant that asks for it pretty much gets it.”
But Alex Hutton QC, the Hailsham Chambers barrister who chaired the committee that created the electronic bill, predicted that opposition would die over time in the same way that it has since cost budgeting was introduced in 2013.
Mr Mackenzie said the bill opened up significant possibilities: “We are quite excited about the electronic bill. We are a predominantly paying party, but we are looking to the future and trying to see where we can take this.
“At the moment, you can dive into the figures and there is more data. We are trying to gather a whole load of bills so that we can identify trends. Once we have a lot of data together, we will be able to see what is going on with solicitors, where the bulk of their costs are and how we can work with our insurers to limit their exposure and litigation spend.”
He added that his fee-earners estimated it was 25-30% quicker to review an electronic bill, draft advice and come up with settlement parameters.
The problem with fee-earners not recording time correctly was that it increased the length of time it took to draft an electronic bill – in addition simply to parties getting used to it – and so drafting fees have gone up, the roundtable heard.
Master Jennifer James, another SCCO judge, said: “I and the other costs judges recognise that drafting fees have gone up. There is going to be a period during which that is going to be acceptable. But at a certain point, we are going to be saying there has been enough time now and it is not proportionate to be charging these kinds of fees.”
Steven Green, a partner and head of costs at Irwin Mitchell, said bills would not draft themselves in future and costs lawyers would still have an important role: “You still have to look at your orders, write a narrative and sense‑check it…
“It is never be going to be, ‘Press a button, here it comes’. We said that to Rupert Jackson. But it should save time if properly recorded. To my mind, that is the end of the story.”
Mr Hutton concluded: “Although we have been talking about problems, I felt the amount of positivity in the room. Given the amount of opposition that we had to bringing this in, the struggle that it was and the people who said, ‘You will never bring it in and it will never work’, I find this generally encouraging.”
Francis Kendall, vice-chairman of the ACL, said the roundtable and his own experience showed the strength of the concept of the electronic bill. “There were always going to be hitches when you change a very long-established way of practising, but the legal profession should be proud of the progress made in such a short period of time.
“I love the new bill. If you asked me to draw an old-style bill now, I would probably struggle. I think they are a fantastic beast, they are the future and they have real scope for analysing the costs in a far better way than we ever did with a paper bill.
“The roundtable included some valuable discussion about how we can tweak the electronic bill to make it even more effective, and I believe that, in five years’ time, we will wonder why it took so long to make this shift.”