Page 9 - PIC Magazine Winter Issue 14
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   Three basic points about the CCP should be noted at the outset:
(1) First, the scheme provides for the recovery of capped costs rather than fixed costs. Capped costs are incurred and assessed in the normal way, but are subject to a series of financial caps based on phases of work done; fixed costs are recovered according to pre-set tariffs based on financial value and the stage of the claim reached. The principal reason for the use of capped costs is that the BPC handle a diverse range of cases, often proceeding under Part 8 rather than Part 7. The fields covered include, to name but a few: professional negligence, breach of contract, breach of trust, insurance disputes, disputes relating to share sale agreements, disputes relating to interests in land, and contentious probate and Inheritance Act claims. Such cases do not follow a standard pattern – for example, some may require a large volume of work to be done at the pleadings stage, but
little at the witness statements phase, and vice versa. Often, non-monetary remedies such as injunctions, orders for specific performance, and orders for rectification are sought. As such, the usual model for fixed recoverable costs, whereby costs are pre-set by reference to the stage of the claim reached and its financial value, does not easily map on to these cases when taken as a group.
(2) Second, it should be noted that the CCP rules draw heavily on the established model of the Intellectual and Property Enterprise Court (‘IPEC’), although there are some significant points of departure. It remains to be seen how far judges of the BPC will rely on decisions of the IPEC in interpreting the CCP rules, though where the rules under consideration cohere with those of the IPEC, IPEC caselaw is likely to be regarded as highly persuasive (if not determinative) authority.
(3) Third, the CCP does not just set up a new costs regime for commercial and chancery litigation; it embodies a holistic approach to costs reform, which recognises that if recoverable costs are going to be set in advance, the accompanying procedural regime needs to radically streamline
the process of litigation so that: (i) the
work done broadly conforms to the costs recoverable, not the other way around, and (ii) the volume of work done is significantly reduced so as to drive down costs overall. This philosophy is espoused in para 1.1
of the CCP rules (which sets out a kind
of ‘Overriding Objective’ specific to the scheme), and it is reflected in the stripped back procedures which apply to cases proceeding within the CCP.
Key procedural features of the CCP:
There are too many procedural innovations in the CCP to explore in detail here. However, important rules to bear in mind include para 2.9, governing the form and content of the statement of case. 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. Although this will inevitably result in some front-loading of work,
the underlying idea is that litigants and the court will have thought carefully about the future trajectory of the case at the outset, which will in turn inform case management decisions and promote settlement.
In addition, statements of case must be accompanied by a bundle
of “core documents” (para 2.9(2)). This is not defined but is likely to be very similar to “initial disclosure” under the mandatory disclosure pilot which is running alongside the CCP in the BPC. Beyond this, the normal rule will be that there is no further disclosure, and any further disclosure will be based on carefully calibrated requests for specific disclosure made prior to the CMC.
Further, other evidence is very strictly limited (for example, under para 2.32 no more than two lay witnesses will be permitted to give oral evidence at trial), and any evidence beyond the general limits set by the CCP rules will only be allowed if it passes the exacting cost-benefit test enshrined in para 2.3(3).
Provisions governing the recovery of costs:
Cases proceeding within the CCP will be free of costs budgeting; instead, the court will summarily assess costs by reference to schedules of costs which need to detail the costs incurred in relation to each applicable stage in the Capped Costs Table. Those stages are as follows:
   Work done in respect of –
Maximum amount of costs
 Pre-action
Defence and counterclaim
Case management conference
Witness Statements
Trial and judgment
Making or responding to an application
£10,000
£7,000
£7,000
£6,000
£6,000
£6,000
£8,000
£10,000
£20,000
£10,000
£3,000
    Particulars of claim
     Reply and defence to counterclaim
     Disclosure
     Experts’ reports
      Settlement/negotiations/mediation
    Work done post-issue which is not otherwise covered by any of the stages above
   £5,000
 Assuming that the approach to summary assessment in the CCP will broadly cohere with that of the IPEC,1 the structure of the costs assessment will be as follows: (i) the court will summarily assess the costs incurred in relation to each work phase; (ii) if the assessed figure for a given stage is less than the limit for that stage then nothing further need be done, but if it exceeds the relevant cap then that cap will be applied; (ii) the assessed sums in relation to each work phase will be added together; and finally (iv) if the total exceeds the overall cap of £80,000 (which is less than the sum total of the individual phase caps), the overall cap will be applied.
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