Sir Colin said: ‘Cases are really not that different from each other. My old clerk could guess pretty well what the case was going to cost. We seem to have bought into the idea that for every single straightforward or even relatively complicated case, one cannot say roughly what it is going to cost. I do not believe it.’
Susan Dunn, founder of third-party funder Harbour Litigation Funding, agreed: ‘We get 40 new inquiries every month. I can tell you what each one of those is going to cost.’
District Judge Simon Middleton, a regional costs judge who leads Judicial College training on costs, said judges are told to trust their instincts on budgets.
However, ACL chair Jack Ridgway countered that, even where the claimant lawyer has experience of a particular defendant in a certain type of case, they can sometimes take an unexpected new approach.
‘You are looking at two boxers and you are asking one boxer to say, “You do not know what kind of punch he is going to throw, but I want you to predict it and you have to be right every time”, because that is civil litigation, ultimately. It is two people trying to knock each other out.’
Moreover, Dunn told the roundtable that many lawyers struggle with budgeting, failing to use data from past cases to predict future ones.
King’s Bench Division Master David Cook highlighted that the circumstances in which costs-capping can be deployed as a judicial tool ‘now seem to be virtually non-existent. Sometimes there are times when you say to yourself that, really, what you need to solve this problem is just to put a cost cap on it’.
The roundtable heard that judges have also become very strict on allowing parties to depart from their budgets at the end of the case under CPR rule 3.18, which allows this when there is ‘good reason’ to do so. Victoria Morrison-Hughes, a costs lawyer at Integral Legal Costs, said: ‘The 3.18 get-out clause has become tighter and tighter. When budgeting was first introduced, you had some confidence in explaining to clients that you might be able to argue good reason. That confidence is diminishing.’
Suggestions for reform included allowing underspends on one phase of a budget to be offset against overspends in others, requiring parties to certify at the pre-trial review that they are still in budget, and widening the use of costs capping.
The roundtable took place in April to mark the 10th anniversary of the introduction of costs management.
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