Cockerill: We must be prepared to learn from those who use the bill every day
The deputy head of civil justice has backed a call by the Senior Costs Judge (SCJ) for a review of the electronic bill of costs.
SCJ Jason Rowley told a recent roundtable organised by the Association of Costs Lawyers (ACL) that the bill tended “to slow down how much you can get through in a day” and said that, after a decade of use, it should be revisited.
Then speaking at last Friday’s ACL annual conference in London, Lady Justice Cockerill, the deputy head of civil justice, agreed that “a decade of experience is a perfectly sensible reason and point at which to ask what works, what doesn’t work and what a better approach must look like”.
SCJ Rowley said practitioners have been reluctant to admit that electronic bills could slow down the process given how Lord Justice Jackson – in his review of civil costs in 2009 – had said they should speed up the process.
The fact that they provided more detail meant there was more to challenge, he pointed out, and that was an offer some could not refuse.
The judge described how the electronic bill, which takes the form of an Excel spreadsheet and has 55 columns – could be “a wall of information and data that puts people off, which does not seem to be a good start”.
He said: “One might say it’s over-engineered. How can a litigant in person make any sense of that whatsoever? We talk about informed consent in all sorts of areas, which comes from a full and fair exposition of things. For a litigant in person, is this a full and fair exposition of what the other side is claiming? I don’t think so.”
This meant the bill needed revision. “I do not suggest that we go back to paper bills, but there were good bits about paper bills in terms of seeing the wood for the trees. You need the detail in some situations because some people really do want to challenge it. I think there is room for something new.”
He highlighted possible routes to reform, describing the Form 5 bill of costs used by the Supreme Court as “disconcertingly simple” and highlighting both the short-form Court of Protection bill and the revised N260 used in the Business & Property Courts for being essentially a Word document translated onto a spreadsheet.
SCJ Rowley revealed that the judges of the Senior Courts Costs Office were working to devise a way forward.
Going back to old ways was not an option – “We’ve all forgotten how we used to grumble about paper document schedules that went on for 50 pages” – so “we should be going in a different direction. We need an industry solution and then I imagine we can get the rule committee to adopt it if they think that everybody is reasonably happy with it”.
In her address, Cockerill LJ said that “in some respects and on some days” the electronic bill achieved its aim of allowing much better analysis of the work claimed.
“The ability to interrogate data can be extremely complicated in the right case, but the ability to interrogate data is not quite the same as the ability to understand it. And there is a risk that we give the reader every single possible piece of information and make it harder to see the point.
“So an effective bill is generally going to have to be something a judge can assess, a lawyer can challenge or defend and a client begin to comprehend.”
She went on: “A decade of experience of the bill is a perfectly sensible reason and point at which to ask what works, what doesn’t work and what a better approach must look like.
“We should be prepared to learn from those who use the system every day, including the people who find it difficult.”
Other participants at the roundtable agreed. ACL vice-chair Victoria Morrison-Hughes said: “It is not that easy to understand the flow of a case from an electronic bill. With a paper bill, it was much easier to understand where the time was being spent.
“I appreciate you might need further analysis in some situations, and I agree that there are some good elements of the electronic bill insofar as being able to dive deeper when you need to, but it takes far longer to prepare and having a general overview does not actually make things clearer to understand.”
She explained that sometimes a lawyer needs that overview “so you can put your thumb in the air and go, ‘I reckon this is what is going to happen. The outcome of this assessment is going to be around here’. That commerciality, in terms of negotiating a settlement, has gone by the amount of detail involved in an electronic bill”.
ACL chair David Bailey-Vella commented: “The Senior Costs Judge is right in his assessment that the electronic bill needs an overhaul. While we cannot go back to paper bills in this digital age, we need to better reflect their best features in the revised electronic bill. The ACL stands ready to assist.”
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