Higher or lower?

One of my favourite topics is words and how we use them.
We recently had a presentation on the latest amendments to the civil procedure rules from one of the most animated
and interesting speakers I
have seen – particularly considering the potentially
dry subject matter.

I have had the fortune of attending his legal update sessions previously and he really does captivate the audience, ensuring that important messages about everyday
legal practice are absorbed.

For example, he highlighted a point about the relatively new and still somewhat uncharted territory of cost budgets: despite the rules clearly stating that if no date for filing budgets is specified by the court, they must be filed ‘seven days before the first case management conference’, which in fact means eight days. Pardon?

Apparently, the rule means seven clear days, but that is not expressly stipulated as, of course, lawyers are all mind readers. Consider yourselves warned.

As a defendant firm, we
have embraced the concept
of cost budgets, as they provide a degree of certainty about the often outrageous costs incurred by the other side, meaning that they are less likely to take us
by surprise.

However, of course one
must always remember that cost budgets do not include
any success fee uplift, which the claimant’s solicitors have agreed with their clients, or the usually exorbitant after-the-event insurance premiums.

Unnecessary nuisance

We recently encountered
a claimant’s solicitor who decided they didn’t really
want to be bothered with cost budgets. The case is progressing in the Royal Courts of Justice before a Master, whom it seems knows the claimant’s solicitor really rather well.

Unusually, the Master encourages and quickly responds to emails at his personal address, and he happily agreed with the claimant’s solicitor that cost budgets are an unnecessary nuisance that could be dispensed with unless the parties had any particular objection. We most certainly did, but it was overruled.

The CPRs make it clear that the court has discretion and
can decide not to order cost budgets. It therefore seems
that we are stuck.

Another important tactical cost budget message, which was delivered during our session, is that you should
go high rather than low, as a strategy of putting in a very low cost budget, to try to make the other side look unreasonably expensive and so invite criticism of them by the court, could backfire horribly. This is because, if they have any nous, the solicitors on the other side will rush to agree your crazily low budget and you will be left unable to recover any amount above your total figure – even
if you win hands down at trial.

Word play

Back to language, I played a board game version of the old TV show Call my Bluff while on holiday recently. It turns out that it assists to be either a medical or legal professional when playing, as a number
of medical terms such as ‘phalanges’ came up, which
was a little unfair when we
were playing against a doctor
and nurse.

To even things out somewhat, ‘otiose’ also appeared, which one of my opposing solicitors likes
to use in every letter he writes.

Less common words were ‘hobbledehoy’, which I thought was a brilliant way to describe
a gawky teenage boy, and another, which caused much wine-fuelled guffawing, ‘williwaw’. While I am tempted to leave its meaning to your imagination, I feel compelled to advise that it is an old-fashioned sailor’s word for a storm.

Until next month, happy
cost budgeting. SJ

Catherine Burtinshaw is a solicitor at Kennedys Law

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