Page 10 - PIC Magazine Winter Issue 14
P. 10

 Particulars of claim and counterclaims are required not just to set out “a concise statement of the facts upon which [the party] relies”, but also a run-down of the legal arguments and a list of the anticipated issues.
In this article, I have endeavoured to highlight that the CCP is as much a pilot of an altogether different way of conducting litigation, as it
is a pilot of a new costs regime. To that extent, it is guided by the same philosophy of reform that underpins much of Sir Rupert Jackson’s Supplemental Report, namely that
if recoverable costs are going to
be set in advance, the actual costs incurred should be reduced by streamlined procedures and active case management. In line with this, work done on cases will need to be carefully budgeted and monitored in order to get the best value out of the scheme for clients.
At the same time, there is undoubtedly room for manoeuvre within the costs-recovery provisions, which paying parties may be
able to turn to their advantage in order to get best value out of the scheme. The other side of this coin, of course, is that paying parties should be prepared for attempts
by receiving parties to exploit the issues highlighted above.
Ultimately, if the CCP is successful, it could provide a promising model for future reform. Litigants and their advisers would therefore do well
to familiarise themselves with the scheme at an early stage, in order to make the most of the opportunities it brings.
Potential issues with the costs-recovery provisions:
In what circumstances will the caps be modified or even disapplied?
The extent to which parties should
be permitted to escape from rules imposing strict limits on costs- recovery is a vexed issue in any costs- fixing or costs-capping regime – since it exposes the tension between the need to give the courts sufficient discretion and flexibility to do justice between the parties, and the desire for certainty in the operation of
such schemes. Indeed, the issue of ‘escape routes’ has been one of the less successful aspects of the IPEC scheme2. In the IPEC, it has been held that indemnity costs awarded
to Claimants under Part 36 are not subject to the caps; and that the general discretion as to costs can justify lifting the phase caps, or the overall cap, or both, in cases which are exceptional but do not amount to abuse of process3. The CCP rules aim to avoid both of these outcomes, as follows:
(1) Under paras 3.12-3.15, the effect of Part 36 is modified so that CPR 36.17 will simply result in the caps being uplifted by a fixed percentage, rather than eviscerating them altogether.
(2) There is no express reference to the court’s general discretion as to costs, in contrast to the IPEC rules. Instead, the CCP rules oblige the court to apply the stage and overall caps, and only a finding of abuse
of process will enable the court
to increase or disapply the caps: see para 3.4. It remains to be seen whether this is enough to effectively oust the court’s general discretion to lift the caps, or whether the court will invoke the general discretion when faced with a set of genuinely exceptional circumstances which do not classify as abuse.
Further, it will be noted that the caps relate to stages of work which are fundamentally similar to Precedent
H phases. Although one might think that the scope of these phases will
be uncontroversial, since we are now well-used to drafting costs budgets, in reality the likelihood is that they will become controversial in the context of the CCP. This is because parties will seek to shoehorn items
of work into phases where they have not used up the maximum allowance, instead of into a more appropriate phase where they have already exceeded the cap. In so doing, they will hope to maximise recovery by spreading their costs across the different phases. If so, there are likely to be fights at the margins as to what work should be appended to which phase. Similarly, the final ‘catch-all’ phase is intended to allow for work which needs to be done but does not readily fit elsewhere. Here, parties may well attempt to claim costs under that phase, when the work done should properly go into one of the conventional phases.
   Juliet recently provided a talk on the Capped Costs List Pilot Scheme at the Costs Law Reports Conference on 25th September in London.
If you would like to secure your booking for next year’s conference contact
         1 See Westwood v Knight [2011] EWPCC 11.
2 See OOO Abbott v Design & Display Ltd [2014] EWHC 3234 (IPEC), and Phonographic Performance Ltd v Hagan t/a The Brent Tavern & Ors [2016] EWHC 3076 (IPEC) (applying Broadhurst v Tan [2016] EWCA Civ 94).
3 See Henderson v All Around the World Recordings [2013] EWPCC 19, PPL v Hamilton [2013] EWHC 3467 (IPEC), and Brundle v Perry [2014] EWHC 979 (IPEC).
 Juliet was a member of the working group appointed by Sir Rupert Jackson to prepare the draft rules for the CCP. All views expressed in this article as to the interpretation of Practice Direction 51W are her own and are not necessarily shared by other members of the working group.

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