High value cases get extra protection from costs management

Senior litigation judges have issued a statement extending the protection for high value cases set out in the new civil procedure rules.

Sir John Thomas, president of the Queen's Bench Division, and Sir Terence Etherton, chancellor of the High Court, said Lord Justice Jackson had 'identified a general view that costs management would not be appropriate for the high value cases which generally pass through the Commercial Court'.

They said this led to the Admiralty and Commercial Courts being excluded from the costs management rules under the version of the new civil procedure rules published last week.

However, Sir John and Sir Terence said that 'on further reflection, it has been recognised that it is undesirable' for the exception to be limited to the two courts when in commercial cases there was often an element of 'concurrent jurisdiction' with other courts.

They said that the civil procedure rule committee at its meeting earlier this month agreed that the exclusion should, under amended rule 3.12(l) be extended to 'such cases in the Technology and Construction Court and the Mercantile Courts as the President of the Queen's Bench Division may direct'.

Mention of the other courts was not contained in the version of the civil procedure rules published last week.

The judges said it would be included in a further statutory instrument amending the rules published next month.

At the same time a direction will be issued under the new rule 3.12(l) stating that costs management will not apply to cases where at the date of the first case management conferences the sums in dispute exceed £2m, excluding interest and costs, 'except where the court so orders'.

Sir John and Sir Terence said: 'The Master of the Rolls has been consulted on and agrees with this direction. Parity of approach in relation to costs management between these courts is considered to be important to avoid any inappropriate forum shopping as parties get used to the new rules.

'The revised rule is an interim measure, as it is thought that the case for any exception should be revisited, given that under the rules there is a discretion which might be exercised in particular cases not to make a costs management order, which could deal with any remaining concerns as to the appropriateness of costs management in high value cases.

'Also, after that review of the position, it will be desirable for the principle finally decided on to be incorporated in rule 3.12(1) itself rather than in a direction.'

The judges added: 'Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so.

'Even when the exceptions in the rule and the direction apply, the use of costs management should always be considered.'