The client needs to be informed that if he is successful then a costs order will be sought in his favour against his opponent but that such an order is in the discretion of the court. These costs are known as 'inter partes costs' and even if an order is made the inter partes costs are never as high as the solicitor/client costs and the client will have to pay the difference. The reason for this is simple since a successful party might instruct the best known and highest paid Solicitor and Barrister in the country.
It would be wrong to penalise a losing party for this. So, the court, in assessing inters partes costs, will assess what is reasonable (quite often the costs will be set down by the Civil Procedure Rules). If an order for costs is made, the Solicitor will draw up a bill on an inter partes basis which will be lodged with the court for "assessment", which in litigation terms, means the scrutiny and approval of the Court. In the County Court the District Judge does this.
The key point to emphasise to the client is that even if he is successful and the court makes a costs order in his favour against the opponent, he may have incurred costs which are not recoverable from his opponent. The primary liability for these costs remains with the client. This does not mean that the winner will get back all his costs. So that they can be classed as 'reasonable' the winner's bill of costs is scrutinised by the Court and the various sums approved or altered as the District Judge seems fit.
This is called an Assessment of costs (formerly called "Taxation"). The drawing and preparing of a Bill of Costs is a specialised activity and many firms of Solicitors send them out to be prepared by specialist costs draughtsman. As the case is on the fast track, a statement of costs would have been lodged at the court 24 hours before the trial. Since the introduction of the CPR, Judges at all levels are required to assess costs summarily at the end of a trial on the fast track or at the conclusion of any other hearing which has lasted not more than one day.
Thus a summary assessment would follow. Case management is the form of training that is given to judges on how to handle cases. Thus, refers to systems in which court or tribunal officials assume closer administrative control over the litigation process than is traditionally associated with common law litigation. The Court itself is under a duty to further the overriding objectives of the CPR (speed, ease and the cutting down of costs), by actively managing cases.
This drastically alters the role of the Court away from merely adjudicating on whatever cases the parties choose to present. Instead, it propels the judge into the arena, so to speak, – it makes him more active in the pre-trial matters to ensure not merely that the litigation progresses smoothly, but also that every aspect of the dispute is considered in terms of time and expense before allowing it to continue. Also, and this is also important, to assist the parties, if possible, in settling the dispute or seeking other means of resolving it. Rule 1.
4(2) sets out some (but not all) of the ways in which the court may actively manage cases which include for example: identifying the issues at an early stage; deciding the order in which issues are to be resolved; helping the parties to settle the whole or part of the case; dealing with the case without the parties needing to attend at court etc… This expansion of the role of the court in the litigation process has considerable implications not only for the parties but also for their legal advisers. No longer will lawyers be able to drag cases out, or sit on files. If they do, the court will intervene.
Judges have been given special training in case management and it may not be out of the question for a firm of solicitors to receive a phone call direct from a District Judge wanting to know exactly what the current position is. The claim will be transferred, by the District Judge to one of three Tracks – the Small Claims Track, the Fast Track or the Multi-Track. Each of these tracks offer a different degree of case management. Directions by the District Judge (i. e. instructions about what the parties must do to prepare the case for trial or hearing), will be proportionate to the value of the claim, its importance, its complexity and so on.
Each track requires a different degree of case monitoring, that is, the more complex or important the case is, the more "milestone" events there are likely to be. Failure to comply with directions within the time limits specified can lead to sanctions being applied by the court. These sanctions will, in the main, be monetary sanctions affecting costs, but the ultimate sanction is having the claim or defence struck out. Thus, the 3 tracks have been designed to implement the overriding objectives (speed, ease and the cutting down of costs) of the CPR.