ANALYSIS: Further guidance on the application of CPR 3.18
In the recent case of BP v. Cardiff & Vale University Local Health Board  EWHC B13 (Costs), Master Gordon-Saker directed that Bills of Costs, which have been subjected to costs management, should be separated into parts so as to reflect and distinguish between the relevant phases of the budget and the costs of the costs management process. This guidance appears to have been generally implemented by receiving parties when serving Bills of Costs. However, some paying parties have been less inclined to revise their Points of Dispute and acknowledge the tides of progress.
Civil & Commercial recently served a phased Bill of Costs, with Points of Dispute eventually being received. While the Points of Dispute received did comply with Precedent G and the relevant practice directions, they did not follow the form and contents of the phased Bill of Costs. The Points of Dispute received failed to identify which phases of the Bill of Costs were agreed or disputed, failed to provide any good reasons to depart from the approved budget, and merely clustered items together across all phases, employing broad-brush indiscriminate reductions to the same - effectively rendering the costs management process and the application of CPR 3.18 nugatory.
The form and content of the Points of Dispute made it impossible for the Court or receiving party to establish which phases of the Bill of Costs/Precedent H should be reduced in accordance with CPR 3.18, thus prejudicing the Claimant’s position at assessment. As such, an application was made to strike out the Points of Dispute and effect CPR 47.9(3). This application was recently heard by Master Rowley at the Senior Court Costs Office.
In essence, the paying party submitted that their Points of Dispute followed Precedent G and that there was no guidance in CPR 3.18, CPR 47 or the relevant practice directions stating that they should have been drafted in any other way. It was the receiving party’s position that as the Points of Dispute grouped together the entirety of the time claimed across all phases, it made it impossible for the Court to have any regard to the Claimant’s approved budget and made the application of CPR 3.18 at assessment unviable.
Master Rowley found the Points of Dispute to be unhelpful to the extent of rendering the whole costs management process pointless. Master Rowley ordered that the paying party must serve amended Points of Dispute in parallel with the relevant phases of the budget. An interim payment on account of costs was also secured and the receiving party was awarded their costs of the day.
While this decision is unreported, it stands as a clear victory for receiving parties and elucidates further the SCCO’s attitude to dealing with budgeted costs. Furthermore, it should serve as a warning for paying parties not to follow blindly the Civil Procedures Rules and Practice Directions having no regard for the obvious evolution and ultimate unification of the costs management and detailed assessment process.
Daniel Jones - Costs Draftsman, Civil & Commercial