In a recent ACL roundtable meeting Master Gordon-Saker suggested that the natural progression for Court of Protection matters from mandatory electronic filing at the beginning of 2020 would be for Bills of Costs to be submitted in the electronic format.
The current electronic Bill of Costs is currently only mandatory in Part 7 Multi-track cases (except in respect of fixed/scale costs, cases where the receiving party is unrepresented or the Court has ordered otherwise) and only in respect of costs incurred after 6 April 2018 (CPR PD 47 5.1). A model electronic Bill of Costs is annexed to the practice direction and is known as Precedent S. However, it is not mandatory to use the Precedent S, only that the electronic Bill of Costs comply with a number of functions set out in the practice direction. This flexibility has resulted in there being other varieties of electronic Bill of Costs out there, including but not limited to, the ACL Bill of Costs.
The electronic Bill of Costs is based on a spreadsheet program, with the majority of electronic Bills of Costs being prepared in Microsoft Excel, to allow for greater transparency through the ability to filter the individual items based on the phase, task and activity which has been allocated to that entry. This was envisioned to allow for greater interaction in the assessment process. This could greatly assist assessors at the SCCO to assess the Deputy’s Bill of Costs and allow for the majority of the process now to be done electronically (at time of writing it is still necessary for the Deputy’s file of papers to be filed in hard copy at the SCCO).
However, there are three main issues which come to mind which will need to be addressed prior to the widening of the scope to include the Court of Protection:
- Cost – It is necessary when preparing an electronic Bill of Costs to include a separate and dated entry for each individual routine letter, email, and telephone attendance. This will result in increased drafting time and subsequently costs for preparing the Bill. Furthermore, Masters have acknowledged that there will also be a ‘bedding in’ period where there will be a further increase in the costs of preparing electronic Bills due to the inherent nature of preparing a new format Bill of Costs and they have stated that this will be factored into and allowed upon assessment.
When this is in respect of costs on an inter partes, when applying the general rule that the loser pays the winners costs, the additional costs for preparing the electronic Bill of Costs appear to be fair and a payment that they will have to bear. It becomes more problematic when the additional costs of preparing an electronic Bill of Costs are to come from a Protected Party’s funds.
One benefit which has been referred to is that the new electronic Bill of Costs will benefit from firms adopting better time recording practices and software. To enable a firm to utilise better time recording then they are likely to be required to spend more on advanced case management software. These additional expenses are likely to increase a firm’s overheads and further squeeze the tight profit margins. This is further exacerbated by the fact that the Guideline Hourly Rates still remain at 2010 levels (another issue to be addressed at another time). The further tightening of profit margins may ultimately affect the willingness of those wishing to undertake work as a professional Deputy if the returns are no longer worthwhile.
- Transparency – The main benefit of the electronic Bill of Costs is the ability to search and filter the Bill of Costs based on the allocation of the codes for phase/task/activity. These have followed the format used when phases were introduced for the Budgeting process normally used in civil litigation cases. Unfortunately, these phases do not correlate to the work required in a General Management period. Therefore, one of the main benefits of the electronic Bill of Costs is rendered useless.
One solution to this issue would be to introduce an update to the Precedent S and the introduction of a new ‘COP’ phase and relevant tasks relating to the management of the Protected Party’s financial affairs, property affairs, care packages, and annual attendances (as an example of 4 tasks) would allow for the functionality of the electronic Bill of Costs. This could be easily accommodated within the electronic Bill of Costs, however, there would need to be agreement and uniformity to ensure that the Bills that are provided for assessment can be assessed fairly.
Assessment – Another important function of the electronic Bill of Costs is the ability for it to be assessed and self-calculate at the same time. Unfortunately, the Precedent S does not allow for this because it does not have any allocation within the spreadsheet for ‘assessed’ or ‘disputed’ sums to be clearly marked and re-calculated. As a result, an assessor would have to essentially overwrite the original electronic Bill of costs with their reductions which would then self-calculate to the assessed amount. Unfortunately, most spreadsheet programs, unlike word-processing programs, are unable to track changes. This means that when an assessed electronic Bill of Costs is returned it would be an extremely difficult and time-consuming process to identify the reductions that have been made in order to consider whether an appeal of the assessment is suitable.
The ACL electronic Bill of Costs has incorporated points of dispute and the ability for an assessment by a judge to be recorded. This demonstrates that this functionality can be successfully incorporated within the electronic Bill of Costs. Before the scope is widened then this feature should be made mandatory for all electronic Bill of Costs.
Therefore, I do believe that there will be a widening of application for the electronic Bill of Costs. The benefits are clear: it enables the process to become more cohesive with the switch to e-filing, provides greater transparency, and, should provide greater ability for assessors to interact and assess the Bill of Costs. However, in order to realise these benefits it is clear that the electronic Bill of Costs still requires further amendments to ensure that it is fit for purpose and avoids the unintended and undesired consequence of increasing the costs and time of the assessment process.
The full judgement can be read here
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