Pre-Trial Checklist: A Good Time to Review Costs Budgets

 

 

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What is a Pre-Trial Checklist?

A Pre-Trial Checklist, also known as a Listing Questionnaire, is a document which may be required on both Multi Track and Fast Track cases if requested by the Court. The Court will stipulate the date on which all parties should complete, file and serve their questionnaire.

The Pre-Trial Checklist (Form N170) will request specific information from the parties; including questions on the number and availability of experts, witnesses and legal representatives that will be required at the Trial, as well as any further directions required, an estimate of overall costs, and details of any proposed timetable for trial.

A Pre-Trial Checklist is usually required to allow the Court to determine whether directions have been adhered to, and if any further directions will be required before the Trial. When the Court has received the completed Listing Questionnaires, they will be able to set a date for the Trial, provide further directions, assess the evidence that is likely to be proposed, and plan the appropriate Court resources.

There is no obligation for parties to exchange copies of their pre-trial checklists; however, doing so can be extremely useful to ensure the Court is provided with consistent information.

 

Reviewing your Costs Budget in the Pre-Trial Review (PTR) Phase

Many legal professionals would consider the Pre-Trial Review phase as a good time to review a Costs Budget as historically, this was a time at which they were traditionally required to provide an estimate on costs within the Pre-Trial Checklist. The Precedent H Guidance document specifically states the Pre-Trial Review phase as a suitable juncture to review and update Costs Budgets, and stipulates such costs of reviewing/updating the Budget are recoverable under the PTR phase.

It is therefore worthwhile ensuring sufficient time is permitted in this phase for review of the Budget, in your initial Precedent H.  Once costed to date, if you need to update your Costs Budget due to a change in circumstances or a significant development, an updated Costs Budget should be prepared using a Precedent T. The Precedent T should be presented to the other side detailing the amendments sought and reasons for requesting the amendments. 

If parties cannot agree to an amended budget, an application must be made to the court to obtain permission to amend the Precedent H.

To be successful in amending a Costs Budget, the party must be able to demonstrate a significant development which has led to an amendment being required. Failing to adequately predict costs will not be considered an adequate reason for requiring an amendment.

A significant development for the Precedent T will be an event during litigation that effects the future course of work to be completed, and could not have reasonably been foreseen at the time of preparing the initial Costs Budget.  Taking a pro-active step to amend the Costs Budget is always more likely to be an effective means of increasing your Budget, rather than utilising the retrospective argument of ‘good reason’ to deviate from the set Budget.

 

Reviewing Costs in Non-Budgeted Cases

In cases which do not require a Costs Budget to be filed, costs will still need to be considered when completing a pre-trial checklist. Fee earners should, at this time, ensure their legal costs are reviewed and that an N260 Statement of Costs is completed in good time for the Trial (required 2 working days before Trial).

There was a pilot for two different types of N260 forms that could be completed, N260A and N260B. N260A should include information on hourly rates for items such as attendances on the client, counsel, opponent and ‘others’. The N260B should be used for an interim application. Similar to a costs budget, there is now a requirement for this form to be split into different phases including:

  • Pre-action work
  •  Issue/Statements of Case
  • Case Management Conference (CMC)
  • Witness Statements
  • Disclosure
  • Expert Reports
  • PTR
  • Trial Preparation
  • Trial
  • Alternative Dispute Resolution (ADR)

The pilot recently ended however, and it was decided that the traditional N260 form would suffice for now, rather than reliance being placed upon the N260A and N260B. 

For Fast Track cases that are not covered by fixed costs, we would advise that an estimate of costs is prepared and appended to your Pre-Trial Checklist. An estimate of costs is a document that forecasts the finances that will be required to take a matter to Trial, and from which a 20% deviation will be permitted in any final Bill of Costs.  If it is not provided, the Paying Party can argue that their position has been prejudiced on costs, and costs consequences may apply as a result.

An Estimate of cCsts has some similarities to a Costs Budget in that it is used as a predicting instrument that allows the court to assess incurred costs and predict future costs. Within an Estimate of Costs, the future costs will often be bulked together. Although different factors will be considered, such as the use of witnesses and experts, the costs will ultimately be bundled together within a summary total. This differs from a Costs Budget as a budget is much more detailed and costs are broken down into phases, specific tasks, and expenditure.

This document was required in all Fast Track and Multi Track matters prior to April 2013 and although they are no longer required under the CPR for any type of case, they are still of some use in non-fixed costs Fast Track cases, such as plevin claims, housing disrepair claims, and credit hire claims. This is because an Estimate of Costs will support any claim for interim payments on account of costs, which will ultimately benefit cashflow if the case is settled before or at trial.

 

How can ARC Costs Assist?

Our team of Costs Draftsmen and Costs Lawyers regularly provide trusted legal information and advice to our clients on costs matters regarding Pre-Trial Checklists.

ARC costs can also assist in the preparation of Costs Budgets (Precedent H), Budget variation noticesBills of CostsPoints of Dispute and replies to points of dispute in all matters involving costs recovery.

As independent costs experts, we facilitate either paying or receiving parties, and have a strong practice in negotiating legal costs on your behalf. Our specialist Costs Lawyers can also provide representation at detailed assessment hearings or CCMCs on your behalf. 

If you are currently considering the options for your case and require legal information regarding pre-trial costs, or any other costs law issue, please contact us through our free chat facility. Otherwise, you can contact one of our experts on 01204 397302 or contact us via email at info@arccosts.co.uk.

 

 

 

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