Lawyers and judges struggling with electronic bills of costs: survey

Many solicitors and judges were not ready for the electronic bill of costs when it became compulsory in April and few are keen on it now, according to a survey by the Association of Costs Lawyers (ACL).

Just 6% of the 86 Costs Lawyers who took part in the survey said that their colleagues or clients had managed a smooth transition to the new regime, while only 16% reported that at least some judges were ready for the new bill while only 5% found that the courts were “keen to get going” with it.

Many expected that judges would use their discretion to waive use of the bill for as long as they could while some judges had still not received the training or technology required.

Submitting an electronic bill of costs became mandatory from 6 April 2018 and applies to multi-track cases or their equivalent.

Respondents were asked their view on one particularly topical budgeting issue, namely whether a costs judge who reduces the hourly rates for incurred costs should then do the same to budgeted costs. Two-thirds (65%) said no – coming within the budget should be sufficient.

There was also continuing concern about the inconsistent application of the proportionality test by judges, with 56% saying that Court of Appeal guidance was needed.

However, the ACL said that there had been some improvement in costs budgeting since its implementation. Some 20% of Costs Lawyers taking part this year said the solicitors they worked with were now sticking to their budgets, while 51% said they sometimes went over. More than a fifth (22%) said solicitors always exceeded their budgets. In each case, the figures show slow improvement on previous surveys which began in 2016.

ACL chairman Iain Stark said: “It is perhaps no surprise that many solicitors are struggling to come to terms with the new bill of costs, with many yet to have either the technology or the time-recording processes in place. But the time will come, sooner rather than later, when they will literally pay the price for their failure to adapt.

“Most district and costs judges will not have yet dealt with an electronic bill, due to the time lag in them reaching court, which is fortuitous given some of the delays in providing training and technology. But both judges and lawyers will have to get on top of it – this is, without doubt, the future. With the culture of compliance that has sharpened since the Jackson reforms, I would not be surprised to see judges clamping down on those who wilfully ignore the electronic bill.”

The Association of Costs Lawyers (ACL) is a membership body representing and promoting the status and interests of Cost Lawyers in England and Wales.