CJR Final Report, Section 25: Costs transparency

Proposal 55: Benchmark costs

In Lord Woolf's Final Report,

it was suggested that proceedings "which have a

limited and fairly constant procedure" might be susceptible, "with the assistance of

user groups and the information available to the SCTO [Supreme Court Taxing

Office]," to the production over time of "figures indicating a standard or guideline cost

or a range of costs for a class of proceedings." Once established, the benchmarks

would provide guidance in various contexts. A party would, for instance, "have to

justify seeking to recover from the other side more than the published benchmark

cost." Or again, his Lordship suggested, "Where a lawyer proposed to charge his

client more than the guideline figure, the Law Society could require a written

agreement to be entered into which would set out the client's acceptance of the

increase." Proposal 54 drew on these suggestions.

Since then, events in England and Wales, have shown that the development of

benchmark costs is much more complex and difficult than may initially have been

anticipated. Benchmark costs would only be acceptable as a guide for the purposes

envisaged if they give a fair representation of the costs that ought to be allowed for a

particular matter. To be able to set such benchmark costs one has to have empirical

information regarding costs for relevant types of cases, taking into account any

important variables that may apply.

The initial difficulty, acknowledged by the LCD in its first Civil Justice Reform

Evaluation exercise published in March 2001, was a lack of such information. It was

found that "court systems held little useful data about costs and that the validity of any

benchmark derived from existing data would be questionable."

To address this

difficulty, Senior Costs Judge Hurst set to work to collect and assess such materials.

He conducted two major consultations and, in October 2001, produced a Report to the

Master of the Rolls on benchmark costs.

Notes

Proposal 54 is dealt with below.

Chapter 7, p 86, §§35-37.

LCD-EF §7.11.