New Electronic Bill of Costs– Senior Costs Judge clarifies when it should be filed
The latest amendments to the CPR Practice Direction came into effect on 6 April 2018, bringing into mandatory being, after many months of uncertainty and debate, the new format Electronic Bill of Costs (Precedent S). The development of the new format Bill has been a long, drawn-out process, in the pipeline ever since Sir Rupert Jackson noted in his Preliminary Report
“The Format of bills used today is based on the style of a Victorian Account Book. That format is not necessarily appropriate or helpful in the 21st century. What is required is a bill which gives relevant information to the court and the paying party and which is transparent. The current form of bill makes it relatively easy for a receiving party to disguise or even hide what has gone on.”
Preliminary Report, 8 May 2009, Chapter 53 at 3.2
and since which it experienced a very difficult birth. It was therefore with considerable relief and trepidation (in equal measure) that the deadline of 6 April 2018 was met by judiciary and profession alike.
As with all updates to the CPR, it is evident that not all aspects have been completely considered, and thus it was with little surprise that, within days, queries have been raised as to how the new system will function, with the Senior Costs Judge, Master Gordon-Saker, being asked to clarify a procedural point.
The query, and confusion, arose out of paragraphs 5.A4 and 5.1A of the Practice Direction supplementing CPR47, which provide respectively
“5.A4 Where a bill of costs otherwise falls within paragraph 5.1(a) but work was done both before and after the Transition Date, a party may serve and file either a paper bill or an electronic bill in respect of work done before that date and must serve and file an electronic bill in respect of work done after that date.”
“5.1A Whenever electronic bills are served or filed at the court, they must also be served or filed in hard copy, in a manageable paper format as shown in the PDF version of Precedent S. A copy of the full electronic spreadsheet version must at the same time be provided to the paying party and filed at the court by email or other electronic means.”
which gives rise to a potential tension between the two paragraphs as to when there was a requirement to file the electronic Bill with the Court; should it be filed at the point at which the Bill is served on the paying party with the N252 Notice of Commencement, or when the N258 Request for Detailed Assessment is filed, with the lodgement fee, as it currently is?
Clearly, if the former, the Courts would be awash with Bills which ultimately may not be assessed as they are agreed between the parties or possibly withdrawn, and the requirement previously to only file with the Request had, for many years, prevented this from occurring. However, paragraph 5.1A appears to suggest otherwise.
Having had the query raised, and stressing that it was only his personal view, the Senior Costs Judge has advised the ACL (Association of Costs Lawyers)
“Electronic copies of the bill should not be filed at court when notice of commencement is served on the paying party. It is fair to say that you are not the first person to raise this, but for my part I think that the answer is tolerably clear.
“PD 47 paragraph 5.2 continues to prescribe what should happen when the receiving party commences detailed assessment proceedings. There is nothing there about sending things to the court.
“Paragraph 13.2 prescribes what should be filed at court when a detailed assessment hearing is requested.
“Paragraph 5.1A simply provides that when you serve or file an electronic bill you must serve or file a paper version. Whenever you serve or file an electronic bill, you have to provide the full electronic spreadsheet version by email or other electronic means.
“The second sentence does not require the receiving party to file an electronic bill when it serves it; it merely indicates the means by which you serve/file the spreadsheet version.
“Paragraph 5.A4 provides that when work is done before and after the transition date, you must serve/file an electronic bill for the work done after, but may serve/file either a paper bill or an electronic bill for the work done before.
“As I read them, in none of these provisions is there a requirement to file when you serve (or vice versa).”
Whilst this clarification is greatly welcomed, it is unlikely to be the last occasion (based on the writer’s previous experience) upon which such further will be required.
As with so many of these articles in the ever changing landscape of costs, it is going to be a case of watch this space…