Master Gordon-Saker, who replaced Peter Hurst as Senior Costs Judge yesterday, has used his first public speech in the role to launch a strongly-worded attack on the lack of training for judges in costs budgeting.
He said judges had received “no training in costs as such” but only help in understanding how to use the relevant forms, particularly Precedent H.
“If judges don’t have a feel for what the costs are likely to be, you give them the figures and they won’t have the faintest idea if they are realistic,” he said.
Master Gordon-Saker spoke of “horror stories” in which judges spent days examining costs budgets, and commented that this was not what they were designed for.
“Costs budgeting is intended to be cheap, speedy, efficient and avoid arguments at the end,” he told a Commercial Litigation Association conference last night.
“For a lot of judges it is a difficult task, and we need to give them the education and training to do it.”
Master Gordon-Saker said that when he went on his Jackson training session, the group of judges he was with were asked to estimate the costs of a five day professional negligence case at the High Court.
The result, he said, was estimates varying from £30,000 to £150,000. The master added that some “experienced judges thought £30,000 was appropriate”, provoking laughter from conference delegates.
The master set the lack of judicial training in the context of a Courts Service which was “under strain”.
A self-confessed Jackson enthusiast, he said the reasons for costs budgeting were “obvious”, and it was needed to provide “fairness for litigants”. While the theory behind it was good, the problem was “the timing”.
He said there was “no money” to give judges a proper training in costs budgeting, leaving “judges with limited expertise in costs with no better idea of what reasonable costs will be”.
Lowering expectations, he warned: “Costs budgeting is a huge change and it will be some time before we get it right”.
He said judges needed confidence, which would “only come with training and experience”. However, he said that he had been told that, so far, people were “generally happy” with the overall results.
Looking to the future, the master said he believed the Court of Appeal should be careful to limit the circumstances in which appeals based on having a “good reason” to depart from costs budgets should be allowed. Otherwise, he questioned whether there was any point in having them.
Elsewhere in his speech, Master Gordon-Saker strongly defended the status quo. He blamed solicitors for failing to take part in the Civil Justice Council survey on guideline hourly rates, leading the Master of the Rolls, Lord Dyson, to put the issue of an increase or decrease on hold.
He said Master of the Rolls would be meeting with the Law Society and the Ministry of Justice to discuss a way forward, but information from solicitors was essential.
The master condemned the old system of recoverable conditional fee success fees and insurance premiums, but added that requests for adjournments based on the Supreme Court ruling in Coventry, which suggested the old regime may have breached the Human Rights Act, had rightly been given “short shrift”.
He repeated his view, that was no need for further guidance from the Court of Appeal on the issue of proportionality in costs, as it was “already there”.
Master Gordon-Saker predicted that the Court of Appeal might only restate the approach taken by Lord Justice Jackson in his final report.