CPR Part 35 introduces cost estimates
Changes to the CPR introduce measures proposed by Lord Justice Jackson
in his review of Costs in Civil Proceedings
From 1 April 2013, Part 35.4 of the Civil Procedure Rules (CPR) requires that an estimate of costs in respect of expert evidence is provided. Further amendments clarify the issues that any expert witness will be asked to address and allow the court to specify issues the expert evidence should address.
The wording of the rule is now (changes marked with an underline):
35.4 Court’s power to restrict expert evidence
(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When parties apply for permission they must provide an estimate of the costs of the proposed expert evidence and identify –
(a) the field in which expert evidence is required and the issues which the expert evidence will address; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it shall be in relation only to the expert named or the field identified under paragraph (2). The order granting permission may specify the issues which the expert evidence should address.
(3A) Where a claim has been allocated to the small claims track or the fast track, if permission is given for expert evidence, it will normally be given for evidence from only one expert on a particular issue.
(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will consider when deciding whether expert evidence should be given by a single joint expert.)
(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party.
The ‘Jackson Reforms’ (see Your Witness 60, June 2010) alters the way solicitors conduct litigation. One significant change concerns the way in which multi-track cases (those worth £25,000 or more) are run. From April 2013, claimant solicitors are required to file a costs budget with the court soon after a defence is received. This is, of course, at a very early stage in the litigation process.
The costs budget is:
- a report on costs that have been incurred, and
- an estimate of the costs to be incurred from the date of the budget up to and including any trial.
This budget will be considered by the opponent on the case and be the subject of legal argument. The court can, and is likely to, make revisions to the budget and will eventually make a Costs Management Order specifying the budget.
The costs budget includes not only the solicitors’ estimated charges, but also specific estimates for counsels’ fees, all experts’ fees and any disbursements. Once a case ends, the costs recovered from the opponent will, in all probability, not be allowed to exceed the costs set out in the Costs Management Order.
It is going to be important that solicitors can include in the costs budget an accurate estimate of all potential expert witness fees and expenses. Otherwise there will be an underestimate in the costs budget and that is going to lead to problems recovering the expert’s fees and expenses.
So you should be on the look out for solicitors asking for an ‘estimate of fees’. In providing the same, you will want to be sure that all possible stages of a case are considered. For example, re-examining the client and preparing a supplemental report; reviewing reports prepared by other experts; reviewing documentation; attending case conferences; preparing joint statements; and attending trial to give evidence in person.
Of course, your contractual relationship is with your instructing solicitor. If the contract stipulates that your cost estimates are not binding, then if the total work exceeds the estimates your solicitor will be contractually liable for the shortfall.
If that is how you see it, then doubtless you will think that it should be up to the solicitors to schedule realistic costs if they want to be able to claim them back. If you are more of a pragmatist, you will understand that it’s not going to be easy to tie down costs so early in a case. If costs budgets will be assumed to be fixed, that is just going to make it more difficult for the lawyer to obtain the full costs. As always, any problem your instructing lawyer has in getting paid will likely be a source of frustration for you down the line, so take care!