Get your retainer in order from the outset and review it as the case progresses to ensure it continues to cover the action – this is particularly relevant for commercial clients where the initial retainer may only cover a specific piece of work but the case progresses and the retainer is not updated to cover the work done outside the scope of the retainer. However, it is also important for clinical negligence/personal injury practitioners particularly where a Claimant attains majority or passes away and it is necessary to update the retainer or enter into a new one to ensure the costs continue to be covered.
Also be careful using template retainers, we regularly see template retainers being used which contain conflicting terms (i.e. the retainer will say in one place that it covers all work done from receipt of instructions but in another place will say that it only covers work from the date it was entered into) or which refer to incorrect parties and incorrect accident details. It is important the retainer is accurate given it can be the difference between you recovering costs and not recovering them.
Remember your obligations in accordance with SRA rules
Check your hourly rates – you may be undercutting yourself!
Make sure you’re not underselling yourself when you set your hourly rates – I often think that client’s hourly rates are too low and should be looked at in more detail, especially in particularly complex cases where it’s possible to send out hourly rate update letters if you choose to increase.
Don’t overlook the 109th update to CPR & updated Guidance Note
As of 1 October 2019 Practice Direction 3E, para 7.4 has been updated so that all costs incurred up to and including the CCMC should be dealt with as an “incurred cost” in the Precedent H. Given the latest deadline for a budget (unless otherwise ordered) will be 21 days before the CCMC, this will create a period of time where costs will need to be estimated and included within the incurred column on the Precedent H. Whilst the majority of the costs to be incurred after the budget has been prepared, up to and including the CMC will fall within the “CMC phase”, it is important to be mindful of the fact that other phases in the budget may be impacted so as to avoid any issues later on when preparing the Bill of Costs. For example, after the budget has been prepared, any work to be completed on pleadings or disclosure before the CMC would need to be accounted for by estimated costs within the incurred column in the Issue and Disclosure phases. It is also important to ensure that your cost budget is up to date ahead of a CCMC so as to ensure the accuracy of any “estimated incurred” items in the budget.
On the 7 October 2019 the MOJ published an updated Guidance Note on Precedent H. The revised guidance supports the changes made under the 109th update to the CPR. It’s important not to overlook the changes, particularly to phasing for example, Counsel’s brief fee for Trial is now to be included within the Trial Prep phase rather than the Trial phase.
Be clear in your assumptions
Keep an eye on your budgets
Be aware of your funds
Obtain quotes where possible
When preparing a cost budget, where possible, obtain quotes from Counsel and experts for their estimated fees to ensure that the cost budget is as accurate as possible and to avoid situations of overspending.
Watch your words