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A perusal of that Report reveals the inherent complexity of any attempt to set
benchmark costs. First, the procedures that are susceptible to published benchmarks
have to be identified. Then the assumptions which are to be used in calculating each
benchmark have to be settled. What level of seniority should one assume for the
solicitor in charge If one were to place legal advisers into grades of seniority, how
would one define those grades and what hourly rates should one attribute to each
grade Should one assume use of a large city firm or a small country firm How
much chargeable preparation time should one assume Should one assume use of
counsel and if so, of what seniority and at what charging rates What about waiting
time at court Special considerations would have to enter into particular types of
cases, such as insolvency and family cases. In short, benchmark costs have to cope
with numerous variables relating to the type of matter being costed and to the
experience and expertise of the legal advisers engaged.
It appears that even now, no benchmark costs have been settled in England and Wales.
In the latest instalment of the LCD's continuing evaluation of the civil justice reforms
published in August 2002, no mention is made of any progress on benchmark costs.
In a recent article, Professor Peysner indicates that after a "somewhat tortuous history"
the work continues and that "the emphasis has latterly switched from classes of
proceedings to specific stages in proceedings. By adding building blocks of
predictable costs the idea is that the total cost becomes more predictable."
There are lessons to be drawn from these difficulties. In Hong Kong, fewer variables
may arise, for example in relation to regional variations in fees. Nonetheless, it is
equally clear that for benchmark costs to command acceptance here as a fair and cost-
saving means of fixing costs awards, they would have to be firmly grounded in
regularly-updated empirical evidence of reasonable charging rates in relation to well-
defined classes of proceedings or stages of proceedings. Such information does not
presently exist and its collection and the subsequent development, based on such
evidence, of definitions and underlying assumptions for calculating each set of
benchmark costs would inevitably pose problems.
Notes
LCD-FF.
Costs in Personal Injury Cases - Searching for predictable costs [2002] JPIL 166 at 170.
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