Valerie Elsie May Merrix v Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) is the first reported decision on the relationship between costs budgeting and a cost judge's powers at a detailed assessment.

The claimant's case was that if the costs claimed were at, or less than, the figure previously approved in her budget, the defendant would have to show that there was a good reason to depart from that figure; and the budgeted costs should otherwise be assessed as claimed, without further consideration. District Judge Lumb found that the process of costs budgeting is not designed to replace detailed assessment. On appeal however, the High Court disagreed. It held that a costs judge must not depart from the receiving party's last approved costs budget unless satisfied that there is good reason to do so. This applies equally whether the receiving party claims less, the same as, or more than, the sums budgeted. The central message was as set out in CPR. 3.18 an approved budget will bind the parties at detailed assessment unless there is a good reason to find otherwise, the purpose of the provision being to reduce the scope of, and need for, detailed assessment. In the context of access to justice emphasis needed to be placed on the importance of certainty on costs. An appeal on this issue is due to be heard in May 2017.

In Greig v Lauchlan & Anor (Ch D 07/12/2016), Richard Millett QC refused to approve an increase of more than £90,000 in a costs budget in respect of counsel's fees in the context of the imminent 10-day trial of a claim for more than £15 million. The defendant sought a revised budget for the trial, including preparation time for leading and junior counsel, submitting a change of counsel was a significant development in the litigation. The court disagreed, finding that a change of counsel was simply a party's choice. A party was free to instruct new counsel at the last minute, but it does so at its own risk.

Costs Budgeting: What Will Constitute "Good Reason" To Exceed An Approved Costs Budget?

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