HAMLYN - College of Social Sciences and International Studies ...

Civil Justice
"The decision to reduce the apportionment which the judge would
otherwise have made in the council's favour from 75 per cent to 50
per cent as a result of the council's conduct is a subjective and wholly
imprecise assessment by the judge of the way in which he considered
the conduct of the litigation had increased the costs. The judge had
only the information which had been made available during the trial
upon which to make this assessment and no specific evidence was
put forward by either party on costs . . . [T]here was no information
upon which any sort of reasoned decision could be made as to the
amount of such reduction." 69
That goes to the question of whether the judge's allocation of
costs is likely to be just. There is also the effect of increased
uncertainty about the outcome and its potential impact on the
attractiveness of using the legal system at all. The points on
which the winner in that case had failed, which led the judge to
reduce the costs order to 75 per cent, had been decided at trial
only after lengthy oral evidence for and against. They were not
spurious points. If the winner is not going to get his costs for
costs incurred on issues on which he lost, how are lawyers
supposed to advise their clients as to what points to take? Are
they to advise that reasonable and seemingly winnable points
should not be taken for fear that they might be lost? The new
rule introduces a range of new uncertainties.
As to increasing certainty and reducing delay, the new system
should secure some gains. To know from an early stage that the
hearing will be on a particular day or during a particular week
and that it is difficult to get the court to grant an extension of
the timetable no doubt helps to concentrate minds and to move
things along. Not that it necessarily follows that things have
actually speeded up. As has been seen, one of the effects may
simply be that the case is prepared before proceedings are
launched onto the Fast Track conveyor belt. But even if it is
handled more quickly there may be a price to be paid for the
increase in certainty and tighter timetables. The point is clearest
in the Fast Track, which will apply to most cases involving
amounts of between £5,000 and £15,000. All cases in the Fast
Track must be given a date of trial, failing which a window of
two or three weeks, not more than 30 weeks from the date of
allocation. If a case is too complex to be prepared in 30 weeks it
69 P. Thomas, "The new costs regime under the CPR", Solicitors' Journal (October
8, 1999), pp. 926, 928.
47