New Format Bill of Costs – Implementation currently on hold
Since publication of the Jackson Report, one of the most burning issues discussed amongst practitioners and at Professional Development Conferences has been the manner in which Bills of Costs have traditionally been prepared, prompting the committee previously chaired by Jeremy Morgan QC, and now by Alexander Hutton QC, to recommend the introduction of so-called “J-Codes”.
These codes were intended to revolutionise the preparation of Bills of Costs, a process considered by some to be unnecessarily time-consuming and expensive, replacing the traditional item by item costing with an entirely revised time recording system, computerised, under which practitioners would assign predetermined codes for “phase, task, activity” where the phase equates to equivalent phases within the Costs Budget (Precedent H), the task is the element of that phase such as, for example, Claimant’s or Defendant’s medical evidence, and the activity being the actual work being undertaken, say correspondence, preparation or consideration. Each entry would also have the ability to have attached to it and “electronic attendance note” to give any further information which may be required or of assistance.
With the application of this method, it was envisaged that Bills of Costs could be prepared “at the press of a button” and would be readily and easily reconcilable with any Budgets prepared in any given matter, thus saving both time and cost in respect not only of the preparation of such documentation, but also in the assessment.
By July 2015, the Hutton Committee had published their recommendations in respect of the proposed format of the new model Bill of Costs, with the proposed implementation date on a voluntary basis of 1 October 2015 in order to “iron out” any teething problems, and for the new format Bill of costs to become “mandatory” as a pilot scheme in the SCCO the detailed assessments from 1 April 2016.
Both the planned of voluntary and mandatory dates, however, subsequently required to be varied, mainly due to the extremely short period between the recommendations being published and the proposed voluntary start of the pilot scheme, however (and as appears typical post-Jackson) certain aspects have already been adopted, with a voluntary pilot starting on 1 October 2015 within the SCCO and, further, the introduction of the new Precedent Q on that date also.
The timescale for mandatory implementation has always seemed unworkably short, at least to practitioners, and it is therefore somewhat heartening to note that in December 2015 the Civil Procedure Rule Committee (CPRC) concluded within the draft minutes of their most recent meeting that “…the matter needed to be given careful further consideration by the Ministry of Justice and by the committee and that it was too soon for any decision to be taken…“, recognising (perhaps for the first time) that the new format of Bill of Costs would have “…major implications…” for the profession.
This recognition came on the back of the initial view of the new format Bill of Costs becoming mandatory in April 2016, but then only two weeks later, the CPRC deciding to delay implementation to October 2016 “at the earliest” and to provide for further consultation. In the interim, consultation had been undertaken by the Hutton Committee amongst the profession which, amongst other things, noted a general reluctance within practitioners to invest in the software required to operate the J-Codes “…largely because of uncertainty about the new bill’s implementation of any future changes…“; and who can blame them given that CPR is now on its 82nd Update since 1999, and it’s 22nd since April 2013!
There was further concern as to the potential retrospective effect that implementation of the J-Codes may have, and the fact that if Bills were having to be prepared on a hybrid basis, the cost of preparing the same could increase by more than 200% switch, the committee acknowledged, was neither the aim of the scheme as a whole, nor the intention of Jackson LJ.
Accordingly, the implementation has been put on hold for the time being, however the CPRC has noted that they are still committed to implementing the scheme, commenting on current state of affairs
“The move from paper to electronic assessment is obviously a huge change. It will require from practitioners substantial investment in new infrastructure (for some, although it is clear that many have the infrastructure already) and working methods.
“Many have not yet made that substantial investment because they have been uncertain about the implementation of the bill of costs. At the same time, many of the concerns now raised about implementation arise from the very fact that practitioners have not yet made that investment.
“If this vicious circle is to be broken, practitioners need to know that the new bill will be introduced. For that reason we have concluded that it is not in fact possible to ‘pilot’ the bill in any real sense. Practitioners cannot be expected to make the necessary investment if there is any likelihood of the BoC being abandoned.”
making it clear that notwithstanding the current “hold” and “vicious circle” the new format Bill of Costs would be introduced at a later date to be determined.
Once again, very much a question of “watch this space”, however it can only benefit practitioners as a whole for full and proper consultation to be undertaken before such extensive reforms to a well-established system are implemented, an approach which has been conspicuous by its absence in so many instances previously.