A number of changes to the CPR are to take place and be effective from the 6 April 2017. This blogg contains the specific issues which have brought about the changes to CPR Part 3 & Part 45. As yet the complete details have not been released.
Cost budgeting and the preparing of Precedent H’s has become a key aspect of all litigated matters which have been listed for multi-track or where the parties believe the matter to be more suitable for multi-track.
Currently, the incurred cost cannot be assessed by the parties or the Court at the Cost Claim Management Conference; the future costs are discussed and set by each phase. The Court and each party may pass comment upon the level of their opponents incurred costs. The revised Part 3 is likely to put in place specifics surrounding the incurred costs element and the consequence of not debating the same at the CMC. In the recent caselaw of SARPD Oil International Limited v Addax Energy SA and another SARPD Oil International Limited v Addax Energy SA and another  EWCA Civ 120 (SARPD).
At the CMC the paying party did not offer any comment upon the receiving party’s incurred costs contained in the cost budget. Lord Justice Sales commented; “First, all the parties appreciated, or should have appreciated, that the first CMC was the appropriate occasion on which issues between them regarding the quantum of costs shown in their respective costs budgets should be debated. That was so both in relation to the estimated costs elements in the budgets, in respect of which a costs management order might be made under CPR part 3.15(2)(b) and pursuant to paragraph 7.4 of practice direction 3E to record the court’s approval of those elements, and in relation to the incurred costs elements in the budgets, in respect of which it would be open to the court to make comments under paragraph 7.4 of PD3E.”
“Moreover, CPR part 3.17 makes it clear that costs budgets are to be important instruments for all case management decisions, so parties must appreciate that if they wish to take issue with another’s costs budget they should do so at the first CMC, when there is to be debate about the costs budgets.”
“In this case the first CMC, and the process leading up to it, afforded each party a fair opportunity to make any submissions they might wish on each other’s costs budgets.”
The new rules will amend Part 45 and more specifically clarity on the current fixed costs for RTA claims which begin life in the RTA low value personal injury portol and are then removed from the same for a valid reason and are subsequently allocated to the multi-track. The Fixed Costs regime was not meant for multi-track claims and this will be covered under the new amendments. The caselaw which has brought about the change to offer clarity are the two claims which were joined together due to the similar legal arguments; Qader & Ors v Esure Services Ltd and Khan and Anr v McGee. Both claims started in the RTA low value personal injury portol and left the same due to the defendant denying liability. The denial focused on the claims being fraudulent and following the issue of proceeding the matters allocated to multi-track. The claims were successful, however the Defendant/paying party argued the fixed costs should still apply. At the Court of Appeal hearing LJ Briggs clarified fixed costs do not apply to multi-track matters.