When to Instruct a Costs Specialist in a Complex or High-Value Case

In complex or high-value litigation, legal costs are rarely a secondary issue. In many cases, costs exposure can equal or exceed the value of the claim itself. Despite this, costs specialists are often instructed too late, typically after problems have already arisen.

Understanding when to instruct a costs specialist in a complex or high-value costs case can make a significant difference to risk management, recoverability, and overall litigation strategy. Early, proactive involvement is often the key to avoiding irrecoverable costs and adverse outcomes at assessment.

ARC Costs explains the stages at which a costs specialist can add the most value and why early instruction is particularly important in high-value and complex matters.

What is a Costs Specialist?

A costs specialist may be a costs lawyer or an experienced costs draftsman, specialising in the preparation, negotiation, and assessment of legal costs. Their role extends well beyond drafting bills of costs at the end of proceedings.

In complex litigation, a costs specialist acts as a strategic adviser, helping solicitors anticipate costs risk, comply with procedural requirements, and protect recoverability throughout the life of the case.

Why Timing Matters in High-Value Costs Cases

In lower-value or straightforward claims, costs issues may be relatively contained. In contrast, complex or high-value cases often involve:

• Extensive disclosure exercises

• Multiple experts

• Long-running proceedings

• Interim applications and contested hearings

• Significant costs budgets

In these cases, costs decisions made early can have long-term consequences. Waiting until the end of proceedings to involve a costs specialist often limits the ability to remedy overspend, poor budgeting, or proportionality issues. 

Instructing a Costs Specialist at the Outset

One of the most effective times to instruct a costs specialist is at the beginning of the case, particularly where the claim is high value or legally complex.

At this stage, a costs specialist can assist with:

• Early assessment of likely costs exposure

• Advising on proportionality and litigation strategy

• Identifying costs risks before they crystallise

• Advising on funding arrangements and recoverability

Early advice helps ensure that the case is structured in a way that supports future costs recovery, rather than undermining it.

Before Preparing a Costs Budget

Costs budgeting is a critical stage in most complex and high-value cases. Errors at this stage can restrict recoverability for the remainder of the litigation.

A costs specialist should ideally be instructed before preparing a costs budget, not after it has been filed. They can assist with:

• Structuring the budget realistically and defensibly

• Ensuring phases are properly scoped

• Avoiding under-budgeting or unjustified inflation

• Aligning the budget with the litigation strategy

In high-value cases, a poorly prepared budget can result in significant irrecoverable costs, even where the party ultimately succeeds.

Prior to the Case Management Conference

The case management conference (CMC) is often where costs budgets are scrutinised and a costs management order is made. This is a key decision point in the life of the case.

Instructing a costs specialist before the CMC allows for:

• Strategic preparation for budget challenges

• Assistance with the budget discussion report

• Anticipation of judicial concerns around proportionality

• Support during or following the budget hearing

Judicial comments at this stage can shape the rest of the litigation, making early costs input invaluable.

When Incurred Costs Are Already High

In complex litigation, it is not uncommon for incurred costs to be substantial by the time costs budgeting takes place. While incurred costs are not approved at the budgeting stage, they remain fully open to scrutiny at detailed assessment.

A costs specialist can advise on:

• How incurred costs are likely to be viewed

• Whether incurred costs are proportionate

• How incurred spend may affect future budget phases

Early advice can help manage expectations and inform strategic decisions about how the case should proceed.

Before Making or Responding to Settlement Offers

Settlement offers, particularly those with costs consequences, can dramatically affect who pays costs and from what date.

In high-value cases, instructing a costs specialist before making or responding to offers allows solicitors to:

• Understand the likely costs position if the case settles

• Assess the risks of adverse costs consequences

• Make informed decisions about timing and quantum

This is particularly important where costs may outweigh damages or where liability is finely balanced.

When Costs Are Likely to Be Contested

In many complex cases, costs disputes are inevitable. Indicators that costs are likely to be contested include:

• Significant disparity between the parties’ costs

• Aggressive interlocutory conduct

• Multiple applications or amendments

• Allegations of disproportionality

Where a costs dispute is anticipated, early instruction of a costs draftsman or costs lawyer allows for proactive preparation, rather than reactive defence at the end of the case.

Before Detailed Assessment Proceedings

If costs cannot be agreed, they will be subject to detailed assessment. At this stage, preparation is critical.

A costs specialist should ideally be involved before assessment proceedings begin, assisting with:

• Drafting a robust bill of costs

• Advising on likely points of challenge

• Managing proportionality arguments

• Negotiating settlement of costs

Late instruction often results in missed opportunities to strengthen the bill or mitigate weaknesses.

When Acting for the Paying Party

Costs specialists are equally valuable when acting for the paying party in high-value litigation.

Early involvement allows for:

• Identifying excessive or unjustified costs

• Advising on proportionality challenges

• Strategic opposition to budgets

• Managing exposure before assessment

For paying parties, early costs advice can significantly reduce overall liability.

Complex Cases Require Proactive Costs Management

High-value and complex cases demand a proactive approach to costs. Treating costs as an afterthought increases the risk of irrecoverable spend, adverse orders, and prolonged disputes.

A costs specialist provides continuity and strategic oversight, ensuring that costs decisions align with the broader objectives of the case. 

Why Early Instruction Delivers Better Outcomes

Instructing a costs lawyer or costs draftsman early in a complex case typically results in:

• Better budgeting and cost control

• Improved recoverability

• Reduced assessment risk

• More informed settlement decisions

• Fewer surprises at the end of proceedings

In contrast, late instruction often means dealing with problems that could have been avoided.

How ARC Costs Can Assist

ARC Costs supports solicitors and law firms involved in complex and high-value litigation, providing strategic costs advice at every stage of a case.

Our team of qualified costs lawyers and experienced costs draftsmen can assist with:

• Early assessment of costs exposure and recoverability

• Strategic input on proportionality and litigation planning

• Preparation and management of costs budgets in complex matters

• Advice ahead of case management conferences and budget hearings

• Drafting, negotiating, and challenging bills of costs

• Representation in detailed assessment proceedings

• Costs advice before settlement offers or mediation

By instructing ARC Costs at an early stage, clients benefit from proactive costs management, reduced risk of irrecoverable expenditure, and stronger outcomes whether acting for the receiving or paying party.