Neuberger: cross-examination and disclosure next on reform agenda

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By Legal Futures

16 February 2012


Neuberger: it is essential that lawyers are paid properly

An investigation into the benefits of cross-examination and disclosure could be next on the costs reform agenda, the Master of the Rolls has indicated.

At the same time, an interim report into the national costs management pilot has found signs that it is producing benefits.

Speaking at the IBC Solicitors’ Costs Conference in London last week, Lord Neuberger said: “While I bang on like so many other judges about the high level of costs, I understand – and I think we all understand – that it is essential that lawyers are paid properly. That is not a factor that has been overlooked.

“It does provide a tension particularly when you have a system of litigation like we have with disclosure, cross-examination and so on that requires a proper service when the amount of stake may not be very much.”

He said that while the Jackson reforms represent a very big step forward, “I am not convinced we’ve got all the answers even now”. He suggested that the “we might even look at our hallowed topics of cross-examination and disclosure, and ask ourselves how cost effective and beneficial they are”.

His speech to the conference – cast as the ninth lecture in the Jackson implementation series that hitherto have been given by the report’s author – gave strong support to the introduction of docketing, where one judge handles both preliminary hearings and the substantive trial.

Meanwhile, the judiciary has released an interim report on the costs management pilot that has been running in all Mercantile and Technology and Construction Courts since October 2011, with the caveat that it is based on small numbers of su

rvey responses from judges and solicitors who have been through the process.

It found that solicitors in general have a mixed opinion of the pilot, particularly over the costs racked up in complying with its rules and completing a costs budget (on form HB).

The report said: “Solicitors also highlighted that the pilot did assist with early attention to costs, that this allowed their clients to better understand their potential liabilities (including their potential liability to the other party if they did not win) and could also assist with settlement.”

Judges were more positive, generally believing that “the pilot encouraged proportionality of costs to the value of the claim”. Other advantages included that it aided case management as well as controlling future costs.

Michael Kain, treasurer of the Association of Costs Lawyers, noted that judges said the average hearing time in dealing with the budget was 47 minutes (plus 15 to 30 minutes for reading in), “which would suggest that the exercise was carried out with in a broad brush approach with virtually no argument”.

He said: “Bearing in mind that even the most straight forward detailed assessment takes a couple of hours, how can a budget for £500,000 to £1m be fixed in three-quarters of an hour? Can it really be relied on?

“If the budget is going to determine the costs at the end of the trial, then surely this hearing is probably the most important hearing and therefore should be taken far more seriously.”

The report also suggested that normally the task of preparing the budget is passed to a trainee or paralegal and should be performed by a more experienced person. “Surely the best person is a qualified Costs Lawyer who has all the skills and experience and is often charged out at the same rate as a trainee,” Mr Kain added.

The pilot is being monitored by the Centre for Construction Law at King’s College, London, led by visiting senior lecturer Nicholas Gould, a partner at City law firm Fenwick Elliott.

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