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(d)
Proposal 56: Disclosure of costs between the parties and to the court
This proposal was strongly opposed. The main concern was that a rule requiring
parties to disclose to each other what costs had already been incurred and estimated
future costs would result in legal professional privilege being compromised.
Certainly, if disclosures in the detail envisaged under the CPR
were to be made,
excessively revealing inferences could be drawn in some cases. The suggestion that
disclosure might be by stating lump-sum amounts without a breakdown faced the
criticism that this would lead to unwelcome tactical manoeuvre.
Parties may, for
instance, be tempted to over-state their costs as scare tactics. Or they might over-state
them for fear of an under-estimate causing them problems at a later taxation. There
was also concern that disclosure to the court might lead to excessively proactive
judicial intervention with a view to reducing expenditure by the parties.
The principal aim underlying the Proposal, namely, to permit parties to assess the
extent of their contingent liability for the costs of the other side, is worthwhile.
However, in the Working Party's view, taking into account the strong opposition to
the proposal, the benefits of such disclosure are outweighed by the desirability of
maintaining legal professional privilege.
Recommendation 129: Proposal 56 (for disclosure of costs between the parties
and to the court) should not be adopted.
Notes
Opponents of the Proposal included the Bar Association, the BSCPI, the HKMLA, the DOJ and three
firms of solicitors. Other respondents, including the APAA and a set of barristers' chambers
expressed support only provided that privilege was not impaired. The Law Society's position is
unclear. Doubts and qualifications on Proposal 56 were expressed in the body of their report (at p
59), but Annex 2 states that Proposal 56 was "not considered" by the Law Society.
See Precedent H of the Costs Precedents scheduled to the Costs Practice Direction. This gives a
breakdown, among other things, of the number of hours engaged with witnesses of fact, expert
witnesses and the client.
A view expressed by the Bar Association, the BSCPI, the DOJ and the Consumer Council.
It may be noted, however, that a pilot scheme that includes mutual costs disclosures between the
parties in relation to ancillary relief claims in matrimonial proceedings has been introduced.
Different considerations may apply to such proceedings where the costs being incurred are likely to
be met from the same pool of family assets.
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