Looking Ahead to Costs Developments in the Future

Next year looks likely to be another busy period for developments within the world of costs. Below I have set out a few predictions and decisions to look out for.

The extension of Fixed Costs will continue to be a key talking point throughout 2021. I have already touched upon the implications of the extension of the Fixed Recoverable Costs regime earlier in December. However, what is interesting to note is that, as of the Association of Costs Lawyers conference held in late November, the new rules for the CPR do not appear to have yet been drafted. This could mean that whilst they are on the horizon, that horizon may not arrive until late 2022 or even 2023. Importantly, it should be reminded that the proposals are due to only apply to accidents that occur after implementation of the regime. This means that there could be another 6-9 months at least of claims where the new regime will not apply.

Furthermore, another consultation that is still yet to provide some form of response or decision is in respect of the fixed costs proposals for clinical negligence cases.

One case that will be going to appeal early in the new year is Belsner v CAM Legal Service. The case is important for all lawyers that are seeking to deduct a success fee from damages. The case related to the level of informed consent required to be obtained from a Client regarding obtaining more costs from the Client that could have been recovered on an inter partes basis and the potential deductions for success fees. It is hoped that the Court of Appeal will be able to shed more light on the bar to be cleared in respect of establishing that informed consent was obtained from a Client.

An early Christmas present provided by the SCCO in December was the guidance for Orders when requesting the Court to approve deductions from a child or Protected Party’s damages. This will be something that all parties dealing with cases such as these will need to become familiar with and something that we at Paramount will be able to assist with as instructed.

Another theme that is likely become more and more prevalent next year will be compulsory ADR. Master Mcleod made an interesting point at the ACL conference stating that the term ‘ADR’ is now out of date and it should be referred to simply as ‘DR’ because it should no longer be considered an alternative but an essential part of all litigation going forward. I can see that this approach will become more prevalent in costs disputes too and in most circumstances could be a more time and cost efficient method of resolving matters instead of the detailed assessment process.

Just before I sign off and wish you all a merry Christmas and a happy New Year, I was reminded of another issue that could be bubbling under the surface in 2022. Signatures. There was an interesting decision in 2021 where the issue of a signature on a Bill of Costs came into play. In the case of Barking, Havering & Redbridge University Hospitals NHS Trust v AKC (2021) EWHC 2607 (QB) a Bill of Costs was struck out because it was unclear who had signed the Bill of Costs. This could lead to an increasing trend of Bills being disputed simply because of the lack of clarity over who had signed the Bill of Costs and, therefore, it is something for all Solicitors to be aware of when it comes to certifying important costs documents. A new year may need to herald a new, clearer signature. This may also go hand in hand with the embracing of electronically signing documents.

If you have any comments or queries regarding this post, please contact Kris Kilsby at [email protected]

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