Pre-Trial Checklist Estimate of Costs: Should it be Filed?
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What is a Pre Trial Checklist?
As part of cases that have been allocated to the Fast Track or Multi Track, the Court will usually request that all parties complete a Pre Trial Checklist. Following the Court’s request, the parties will be made aware of a date on which the Pre Trial checklist, also known as a Listing Questionnaire, will need to be completed, filed and served.
A Pre Trial Checklist form will ask the parties a variety of questions. This will include questions regarding availability and number of witnesses, experts, legal representation required at Trial, and any further directions required. Additional documentation is also requested, including any proposed timetable for Trial, details of any draft order for additional directions, and an estimate of costs.
The purpose of a Listing Questionnaire is to allow the Court to determine if directions have been adhered to, and if any further directions will be necessary prior to the Trial. Subsequent to the receipt of the completed Pre Trial Checklist, the Court is able to set the date for the Trial, give any further directions, assess what evidence is likely to be proposed at the trial, and plan the appropriate Court resources.
The parties are not required to exchange copies of their listing questionnaires. Nonetheless, it can be extremely useful to do so as it avoids the Court being provided with inconsistent information.
What is a Pre Trial Checklist Estimate of Costs?
An estimate of costs is a document that forecasts the finances that will be required to take a matter to Trial. Before April 2013, an estimate of costs was required for all multi track and fast track cases as part of the Pre-Trial Checklist. The document allowed the Court and opponent to establish approximate figures of proceeding, and was useful as a cross reference in any final Bill of Costs. In turn, this ensures that the proportionality of the costs for a matter are measured consistently. An Pre Trial Checklist estimate of costs takes many factors into account such as, who will be working on the case, the hourly rates and the use of future experts or witnesses. The figure on the estimated costs document is not a concrete amount as it is an estimate, and the overall costs of the matter will be assessed upon the conclusion of the case.
Previous rules permitted a difference of up to 20% from any previously completed estimate of costs however, since the introduction of costs budgeting, this rule has been removed but still exists to an extent in CPR PD 44 3.2, in relation to costs budgeting.
What are the Similarities Between a Costs budget and an Estimate of Costs?
An estimate of costs and a costs budget are similar in a number of ways. They are both cost predicting instruments which allow the Court to assess the costs incurred and the predicted future costs. In addition, they are both completed prior to the date of the trial, albeit budgeting arises much earlier in the litigation process.
What are the Differences Between a Costs Budget and an Estimate of Costs?
When an estimate of costs is being prepared, 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.
Contrastingly, a Costs Budget, also known as a Precedent H, is much more detailed and can break down the costs into phases, specific tasks and expenditure between profits, experts and Counsel. Furthermore, costs budgets are only required on multi track matters, or on cases where they have been ordered, and are prepared at the CMC stage. Cost estimates were historically, typically used for both fast track and multi track claims and were prepared at the PTR stage.
Is a Pre-Trial Checklist Estimate of Costs Still Required?
Prior to April 2013, paragraph 6.4(1)(b) within the Costs Practice Direction stated that parties must file an estimate of costs if their case had been allocated to the fast track or multi track, and they were filing a Pre-Trial Checklist. The rules also stipulated that this document should be served “on every other party”. However, these guidelines have now been eliminated and replaced with updated directions in light of costs budgeting. Nevertheless, the Listing Questionnaire still provides for an estimate of costs to be filed.
The current rules lack any requirement for parties to file an estimate of costs alongside their listing questionnaire, also known as a Form N170. Within CPR 28 Practice Direction 6.1 for fast track cases, it is stated that “attention is drawn to the Costs Practice Direction, Section 6, which requires a costs estimate to be filed and served at the same time as the pre-trial checklist is filed”. Nevertheless, Costs Practice Direction Section 6 (CPR PD 6) was removed in 2013 so there is clear ambiguity to within the CPR. Under the current rules for Multi-Track claims, an estimate of costs is not required as costs Budgeting will apply.
It is feasible that the references to estimates in CPR 28, is highlighting that where the Civil Procedure Rule 3 PD3E do not apply (for costs budgeting), that the previous guidelines should be utilized and an estimate of costs should be prepared. However, upon consideration of the current guidelines, it appears that estimate of costs documents are not required alongside a Listing Questionnaire. In conclusion to this argument, it appears as if the Civil Procedure Rules require amendment as there are references to outdated guidelines which are no longer relied upon.
How can the Updated Guidelines in CPR 28 be Interpreted?
Due to the ambiguity of the guidance, it can be difficult to interpret the Civil Procedure Rules concerning estimates of costs. It is for this reason that the instruction of a legal representative, such as a Costs Draftsman or Costs Lawyer, can be extremely helpful during legal costs disputes.
It should be noted that the Court cannot demand further actions or place sanctions upon a party who does not prepare an estimate of costs as a part of their Pre-Trial Checklist. This is because there is no requirement to prepare this document within the CPR, apart from the reference to the previous rule in CPR 28. In the absence of sanctions, a party is able to proceed to file a Pre-Trial Checklist without an estimate of costs in support without any issues arising.
What are the Benefits of Preparing a Pre Trial Checklist Estimate of Costs?
In Fast Track disputes which involve fixed recoverable costs, an estimate of costs would be of little benefit. Similarly, an estimate would be of little benefit in Multi Track disputes where costs budgeting will already apply.
However, in Fast Track matters in which fixed costs do not apply (e.g. housing disrepair, Plevin disputes or credit hire claims) an estimate of costs may retain some benefit. If the case settles prior to or at Trial, an estimate of costs will support any claim for interim payments on account of costs, which will ultimately benefit cashflow.
Many legal representatives may advise that the estimate of costs document is redundant. However, it still can retain benefits in litigation if used in the right proceedings.
Who Should I Appoint to Prepare a Pre Trial Checklist Estimate of Costs?
The accuracy of Court documents is extremely important which is why the contracting of a costs law expert for drafting a legal costs document is vital.
In the matter of Wong v Vizards  2 Costs LR 46, the Solicitors prepared an estimate of costs to their client, based upon the worst case scenario. Ultimately the Judge had to consider whether it was fair that the client then had to pay more than the estimate on conclusion of the litigation during a Solicitor Client costs dispute. Upon deliberation, the Judge decided that the solicitors could be allowed a margin of approximately 15% over the worst-case estimate provided.
Though this relates to an estimate of costs provided to a client, it demonstrates the implications arising from a failure to appoint a legal costs expert to assist in quantifying/advising on costs of litigation.
How can ARC Costs Assist?
Since our establishment in 2014, ARC Costs have developed a reputation as a well-respected and no-nonsense costs law practice. We have built an outstanding team of legal professionals who are well-equipped with the skills to work on a variety of cases.
Our team of Costs Draftsmen and Costs Lawyers regularly provide trusted legal information and advice to our client. In matters where the preparation of an estimate of costs is being queried, we can advise on any requirements and/or provide assistance in quantifying your costs if necessary.
ARC costs can also assist in the preparation of Costs Budgets (Precedent H), Budget variation notices, Bills of Costs, Points of Dispute and Reply 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 estimates of 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 drop the team an email on email@example.com.