If in doubt, budget it out!
Lee Dixon, Costs Lawyer at PIC, suggests that in the face of concern, it’s always better to run a costs budget than not.
I’ve recently seen a case with two conflicting orders; one requiring budgeting and the other dispensing with it; the latter predated the former. The former was an actual order whereas the latter was more like a letter from the Judge. All very confusing. Timescales are tight and you cannot simply ring a Judge and ask them which Order/direction prevails. Neither can you always write as your letter could spend 15 years in a letter-tray or your email junked.
A more common example is when the court provides notice of proposed allocation to the Fast Track but you think it’s a Multi Track case. Do you do a budget? Arguably no, but then it only takes one genius to find a creative argument and suddenly you’re faced with running a case for court fees…
What is our advice?
Well, we’ve always said, if you’re in any way unsure then do a budget. The cost of doing so is trivial when compared to the draconian ramifications of not doing so (and probably the cost of even a successful relief from sanctions application). Even if not used, it serves a purpose as a useful costs estimate and even lets you keep one eye on the waters for the current costs equivalent of the hungry Great White; proportionality.
In Jamadar v Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001, the Claimant argued that there was no need for a costs budget so they didn’t prepare one. They should have as Judge Gosnell stated:
“Any sensible solicitor, even if they believed that they were right about the law, would probably have prepared the budget”
This was also agreed by Jackson LJ himself.
I suppose the question is; is ‘sensible’ the same as ‘reasonable’?
Google certainly thinks so:
adjective: sensible
- done or chosen in accordance with wisdom or prudence; likely to be of benefit.
| synonyms: | practical, realistic, responsible, full of common sense, reasonable, rational, logical, sound, circumspect, balanced, sober, no-nonsense, pragmatic, level-headed, serious-minded, thoughtful, commonsensical, down-to-earth, wise, prudent, mature; |
Now, courtesy of Judge Gosnell, there is also a good argument that even if you were wrong, the question is whether at the time (Francis v Francis and Dickerson) it was ‘sensible’ to prepare a budget. As long as it was, then it follows you should get paid for preparing it.
To contact Lee for more information on this blog or any of the budgeting matters it raises, please click here.