Case and costs management should be separated, and costs judges tasked with setting the budget and also summarily assessing incurred costs, the Senior Costs Judge has suggested.
Andrew Gordon-Saker sits on the Civil Justice Council costs working group, which is examining budgeting as one of four areas for possible reform.
Speaking at the recent Costs Law Reports annual conference in London, the judge said there appeared little enthusiasm for abolishing budgeting.
“It may be that people fear it would lead to greater extension of fixed costs,” he said. “The smart money may be on some tinkering with it rather than abolition. The extension of fixed costs that is happening [next April] is going to take some of the sting out of the criticisms of budgeting in smaller cases.”
Judge Gordon-Saker said one of the criticisms of budgeting was inconsistency between courts. While judicial training “has improved considerably”, he said he still saw some budgets that were “surprising”.
Another was that it occurred too late in the process, meaning significant costs were incurred before the court has become involved in controlling them.
He went on: “So how about this as a solution to both criticisms: we break the link between case management and costs management. The conventional view is that the judge giving the directions should also set the budget… And the orthodoxy is that the court needs to understand the costs implications of the directions that it is endorsing…
“But does it?… Are those stages really symbiotic? Once you have a set of reasonable and proportionate directions, why can’t another court form a view on the reasonable and proportionate costs of giving effect to them? And if a costs judge were to undertake the budgeting, then why not have them also summarily assess the incurred costs at the same time?
“The costs budget is just a prospective summary assessment of the future costs, which is not to be departed from without good reason, so why not summarily assess the incurred costs at the same time.”
He said the assessments would be “conditional”, because there would be no entitlement to costs until a costs order was made at the end of the case. “But it would provide both sides with certainty and it would avoid the need for detailed assessment.”
Speaking earlier at the conference, Richard Wilkinson, a barrister at Temple Garden Chambers, said the idea of decoupling case and costs management could work in higher-value cases, where it would save “a lot more time” if budgeting was carried out after the directions were settled.
“I understand that this is complete anathema to those who conduct judicial training,” he added.
But he said he understood that King’s Bench masters were “already thinking about this” – and some have even started doing it, doubling the number of hearings they were able to conduct.
He has been told that around half of cases did not then require a costs management hearing as the budgets were agreed, and those that did come back to court were paper-based hearings.
Judge Gordon-Saker also explained that the title ‘master’ has been replaced by ‘costs judge’.
“There is a feeling that the title master is now inappropriate. I don’t think I’ve ever been described as woke or PC, and I’m certainly not in favour of change for the sake of it, but similarly there’s no good reason for keeping things which may be inappropriate. I can say from personal experience that being called master by somebody of West Indian heritage is distinctly uncomfortable.”
While “I can’t tell you what you should call me”, he indicated that ‘judge’ would suffice. He objected to ‘sir’ or ‘madam’ – “not because they’re gender specific but because they’re deferential and meaningless”.
Judge Gordon-Saker also said it was time to review the £75,000 threshold for provisional assessments, but he was not keen on extending the provisional assessment model more widely.
He also said there was “absolutely no pressure to extend the mandatory use of electronic bills to other areas”.