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New Format Electronic Bill of Costs – 6 April 2018 is set as “E”-day

The writer has, previously, reported on the progress (or lack of) the much lauded new format of Bill of Costs. The new format, which will see Bills becoming wholly electronic, has it is perhaps fair to say, been both applauded and criticised in equal measure by the profession as a whole, and there has been considerable impatience across the board either for it to be implemented or buried, rather than suffer the painful and embarrassing public death that, at one time, it looked like it would be subjected to.

It is therefore with a not inconsiderable degree of relief (and perhaps an equal measure of caution) that we are able to report that both the Senior Costs Judge, Master Gordon-Saker, and Alex Hutton QC (who heads the committee who oversee the format and implementation of the new Bill of Costs) have confirmed that colours have finally been nailed to the mast, and the new Bill of Costs will be introduced on 6 April 2018.

In announcing the date, Mr Hutton QC warned against practitioners choosing to ignore the new format, noting that “The Civil Procedure Rule Committee has accepted the principle that the new bill will not be widely used until its mandatory. The Ministry of Justice is behind it and all are agreed on the 6 April 2018 transition date.”

We have, of course, been here before (the new Bill was supposed to come into effect this month) and the reassurance that no further delays are envisaged is delivered with the customary side order of a pinch of salt, however both have once more been adamant that, this time it will happen. And they do have reason to be optimistic, so practitioners should ensure that they are ready.

Speaking at the Costs Law Reports Conference 2017 on 28 September, the Senior Costs Judge noted that the latest update to the CPR (the 92nd update, incidentally) which came into force on 1 October 2017, made the necessary changes to enable electronic Bills to be implemented, but also provided some reassurance to the more nervous factions of the delegates that they should not “…panic yet, because the amendments to the rules and the practice direction to part 47 which contain the meat, and the practice direction-making document, have not yet been published.” So, when they do come into effect, what sorts of matters will they affect?

The Senior Costs Judge confirmed that it was his understanding that the new format, electronic Bill of Costs would be mandatory for

  • part 7 multi-track claims;

  • the Bill relates to work undertaken after 6 April 2018; and

  • provisional assessments (Bills under £75,000.00)

but would not apply where

  • the proceedings are subject to fixed or scale costs or scale costs;

  • any matter where the receiving party is a litigant in person;

  • cases where the court has made another order;

  • legal aid claims;

  • or Solicitors Act assessments

The mandatory nature of the new Bill and the provision that the Bill will relate to work undertaken after 6 April 2018 gives rise to an interesting situation, such that in matter which commenced before 6 April 2018 but do not conclude until after that date, essentially 2 Bills will be presented for assessment; a traditional, old format paper Bill for work prior and the electronic Bill for the work after.

In acknowledging the rather curious situation, the Senior Costs Judge noted that both he and those others responsible for its development and implementation were “…frankly…working possibly on the false assumption that if you’ve got to prepare an electronic bill, you’re probably going to do it for the whole case rather than just a bit of it”.

As for the assessment process, it was envisaged that parties would email the electronic Bill to a dedicated email address at the relevant court, simultaneous to the lodgement of their papers and request for the assessment, enclosing with those papers a PDF version of the Bill. Ultimately (for the SCCO at least) it was hoped that the courts would go completely digital, such that “…at a detailed assessment hearing, points of dispute will be up on the screen next to the bill.”

All very slick, in theory, and it is hoped that this new, more up to date approach will prove to be more efficient than the current, paper based system (it has its flaws, but it is equally important to acknowledge that it has served the profession well for decades nonetheless). However, doubtless, time will tell.

What is certain is that these changes will require proper attention to be given by skilled costs practitioners to ensure that the new system, through transition and beyond, runs as smoothly as possible.

There is, as with all major changes, a degree of apprehension within certain quarters; very few of us like change, especially when it’s mandatory. However, the date has now been set in stone and the new electronic Bill is coming into force on 6 April 2018.

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