ARTICLE
The impact of COVID-19 on the legal costs landscape By Rebecca Humble
T
he COVID-19 pandemic has presented a challenging time for many industries, but how has this impacted upon the legal profession, particularly in terms of maintaining cash flow during this period of uncertainty? We have seen many firms embracing new practices and new technology to allow them to work from home and to deal with both online and paper-based workloads. This has brought about the benefit of flexibility for many costs practitioners, allowing legal practitioners to continue working with minimal downtime. Detailed assessment hearings were surprisingly excluded from the Civil Court Listings Priority produced on 1 April 2020 by HM Courts & Tribunals Service. Costs recovery is essential to the success of any firm and so the Court’s introduction of remote costs hearings was a welcomed move. Guidance on the conduct of Remote Hearings The Association of Costs Lawyers, with the support of the regional costs bench has hosted guidance on the Protocol for the Conduct of Remote Hearings issued by the Judiciary. This helpful guidance has been welcomed by the Masters at the Senior Courts Costs Office and refers to the emergency updates made to statute, specifically updates to the Civil Procedure Rules, which includes Practice Direction 51Y – ‘Video or Audio Hearings During Coronavirus Pandemic’ and Practice Direction 51ZA – ‘Extension of time limits and clarification of Practice Direction 51Y – Coronavirus’. The guidance is intended to address not only detailed assessments but also oral review of provisional assessment hearings and those where the Court is invited to certify an amount payable from a child or protected party’s damages pursuant to CPR 46.4(4). In terms of making requests for assessment and corresponding with the Courts, parties are advised to communicate by email only and, in the event of a hearing already being requested, to communicate with each other to agree a mode, platform and scope for the hearing. There are many platforms available for remote hearing, including the popular BT or Skype conference call, but any communication method may be considered and approved by the Court once a hearing date has been fixed.
Preliminary issues are to be identified and the Court will produce directions in instances when parties have failed to agree upon the factors mentioned above. To reduce the level of physical papers being sent to the Court, it has become routine for the Court to direct the receiving party to file and serve documents electronically. These “e-bundles” contain “common documents” disclosable between the parties and should be filed 3 days before the hearing (or as otherwise ordered) and should comprise of a single PDF file, including an index and paginated page numbers. Along with the e-bundle, the receiving party is to file the electronic Bill of Costs in an editable format, Points of Dispute and Replies and an “offers bundle” in single PDF files. Party details for invitation to the video hearing must also be included. The receiving party is to email a link to the Court, leading to an online data room containing the e-bundle and other documents (the Court will provide the relevant email address for that purpose). This link is also to be provided to the paying party at the same time as filing at Court and the email will constitute effective service. The ACL guidance advises that the contents of the e-bundle is to be agreed between the parties and should be organised so as to include; a. Any skeleton arguments; b. E xtracts of any authorities upon which either party wishes to rely; c. A core case documents to include: – i. Pre-action letter of claim and letter of response; ii. Statements of case (to include schedules and counter schedules of loss); iii. Court Orders; iv. Key disclosure; Continued on next page
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