There are a handful of errors which regularly occur in the world of costs management. Here are my top 5 tips on how to avoid them.
1. IF IN DOUBT FILE A BUDGET. The sanction for failure to file is evil. No costs at all for you from now on. If successful you would be entitled to recover court fees but that is simply reimbursement for money paid out. If you have a scintilla of doubt the safest thing is always to file and exchange.
2. PRODUCE ON TIME. There are 2 different time scales. Do not confuse them. The default position is that where the stated value of the claim is LESS than £50,000 the budget is to be produced alongside the Directions Questionnaire. So, if the claim is £50,000 or more it is to be produced no less than 21 days before the first case management conference. The Court has the ability to vary these timings; see the opening words of CPR 3.13 (1).
3. LEAVE NO GAPS! Judges when they get training (which appears to be uncommon) are told to construe ‘to be advised ‘and other evasive language as a zero. It is possible under the new Disclosure Pilot Scheme to agree to with the other side to omit the Disclosure element in which case it will have to be dealt with after the CCMC .Otherwise , never leave gaps and do appreciate that a supposed budget which is substantially incomplete could be rejected outright.
4. MOVE LIKE LIGHTNING TO VARY! A budget can only be varied during its lifetime if there has been a significant development (see PD 3E 7.6). So, if for example the budget was predicated on the reasonable assumption that Disclosure would generate 20 Ring binders of material and the other side dumped double on you then calculate the financial impact. However, DO NOT apply to Court for more. The PD cited above is explicit. Seek the consent of your opponent to vary. If consent is not forthcoming, then apply to Court.
5. IF YOU MISS THE DEADLINE MAKE AN IMMEDIATE FORMAL APPLICATION TO THE COURT FOR RELIEF. The DENTON criteria apply so ensure that you address and satisfy them. Delay can be fatal! See for general guidance paragraph 57 of BRITISH GAS V OAK TRADING (2016) EWCA Civ 153.