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Ridgway: Costs lawyers should be allowed to sit in the SCCO
Litigators need to start preparing for a new era of costs budgeting, with three-year simplified pilots set to start in April, the Association of Costs Lawyers (ACL) has said.
The Civil Procedure Rule Committee has so far approved two budgeting pilots to start in April – for cases within the Business and Property Courts (BPC) and for certain other cases valued at under £1m – with work continuing on another one for cases involving qualified one-way costs shifting.
They all are the result of the Civil Justice Council costs review, which in May 2023 concluded that budgeting has been a success and should be retained, but also reformed in recognition that “one size does not necessarily fit all”.
The BPC pilot is intended to cover the Rolls Building and at least two BPC district registries. It will also cover business and property work in the county court at the same district registries. Given the use of fixed costs on the intermediate track, it will mostly be High Court cases that are affected.
ACL chair Jack Ridgway said: “Costs budgeting is here to stay and these pilots will mark a new era in ensuring the process is proportionate to the type of litigation involved. Costs Lawyers will be at the forefront of making these pilots work as practitioners come to terms with new rules and forms.”
He added that other key costs developments this year included dealing with a “lacuna in the rules” as to what costs apply for a claim valued up to £100,000 which settles prior to allocation, in this case to a particular band related to complexity.
This was resolved by case law in claims for up to £25,000 under the previous fixed costs regime and lawyers should expect a similar decision for intermediate track claims, he said.
Mr Ridgway also anticipated a formal review of the costs provisions of the Solicitors Act 1974. The ACL and others have been calling for this for some time and though a Civil Justice Council working party was currently looking at the Act, he said ultimately a full review and legislation would be required, undertaken either by the Ministry of Justice or Law Commission.
Whether we will see the legislation make it in this Parliament is questionable, though – the Act needs a full re-write with its underlying principles also considered.”
Mr Ridgway predicted that the government would change the law to allow costs lawyers to become judges, as part of the push to improve judicial diversity.
But he cautioned that the experience of CILEX lawyers suggested that it would initially be limited to roles in the county court and lower tribunals.
“This means we will not be able to apply for High Court positions, in particular the Senior Courts Costs Office (SCCO). I hope the Ministry of Justice would see sense in carving out a specific exemption allowing Costs Lawyers to sit in the SCCO.”
He ended: “I would also like to see action in the wake of last November’s ruling by Costs Judge James in the SCCO, where she highlighted the lack of recourse against an unregulated costs draftsman.
“This is an unacceptable and unnecessary gap in regulation, and I urge the Legal Services Board and Ministry of Justice to address it.”
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