The recent costs judgment in Crypto Patent Alliance v Craig Steven Wright  EWHC 242 (Ch) identified and discussed two problems plaguing litigation; a failure to keep costs reasonable and proportional in accordance with the Overriding Objective, and a breakdown of professionalism in some cases.
This case is the latest in a series of costs ‘rows’ in which solicitors for both sides racked up significant costs which the court considers to be unreasonable in the context. Although fulfilling the requirements of the CPR and keeping clients happy takes a considerable amount of billable time, fee earners have a responsibility to keep an eye on the numbers.
The following are examples of key considerations for lawyers when managing costs:
1. Is the client being regularly updated regarding time and fees?
2. Will costs be recoverable and if so, how will they be assessed?
3. Is spending billable hours on this piece of work in the best interests of the client?
4. Is the piece of work necessary?
5. Could the work be done by a lower Grade lawyer with a lower hourly fee?
If you are a lawyer, try to bear in mind that clients are often unfamiliar with the litigation process and the significant financial commitment that it demands. Manage your client’s expectations and keep them informed at every stage.
If you are a client, make sure that your lawyer is providing you with regular time and fee updates which include disbursements. There are a range of expenses incurred during litigation beyond solicitors’ fees, from postage to barristers’ fees and court fees. In addition, if your lawyer has not explained what is meant by ‘costs’ and how this area of procedure can and will impact your case, ask as soon as possible.
Litigation is, of course, an exceptionally stressful process for clients and lawyers alike. Nevertheless, while clients are personally involved and can be forgiven for outbursts of passion, lawyers have a duty to maintain composure and professionalism, especially in court.
It is both possible and appropriate to carry out a client’s instructions in a way which treats the other side with respect. This is the case regardless of the severity of the accusations made by the client against the other side.
If you are a client, be aware that your lawyer should be carrying out your instructions using the appropriate language, which might mean a departure from the exact words used by you, for example in a witness statement. The Courts expect a specific style of writing to be used and a good lawyer will be able to get your key points across and tell your story despite having to conform to that specific style of writing.
Respectful, timely communication is key.