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LAW COSTS DRAFTING

AND NEGOTIATION SERVICES

IS THERE SUCH A THING AS TOO MUCH INFORMATION?

By Ben Simpson

Barking, Havering and Redbridge University Hospitals NHS Trust v. AKC (a protected party by litigation friend MCK) [2021] EWHC 2607 (QB)

On 29 September 2021, Mrs Justice Steyn QBE provided clarification about the information to be included in a bill of costs. The judgment highlights the importance of certainty and transparency of information in a claim for costs.

BACKGROUND

AKC (“the Respondent”) made a clinical negligence claim against the Hospital Trust (“the Appellant”), in early 2012.

Following the Court’s approval of settlement on 7 March 2019, detailed assessment proceedings in respect of quantum costs were commenced, and these were set out in a hybrid bill of costs. The hybrid bill comprised an old format paper bill for work undertaken until 6 April 2018 and a new format electronic bill covering costs thereafter. This reflected CPR PD 47 paragraph 5.1 which requires all work after 6 April 2018 to be in electronic format, but a paper bill can be completed for work prior to this date.

Points of Dispute and Replies to Points of Dispute were exchanged. The representatives for the Hospital Trust raised preliminary issues in respect of the information contained within the bill. On 2 January 2020, they made an application to strike out AKC’s bill of costs. They did not seek to strike out the claim for costs, only the bill in its current format.

The preliminary issues were determined by Master Nagalingam in the SCCO, following a hearing on 27 April 2020. The Costs Judge accepted he had jurisdiction to sequentially find that the bill was defective but dismissed the strike out application.

THE APPEAL

The case was listed for a rolled up one day appeal hearing. There were three grounds of appeal:

  1. The bill of costs was not properly certified because the signatory was not identifiable.
  2. The paper bill failed properly to give the name and status for each fee earner and to identify the work done by each fee earner, contrary to the requirements of CPR PD 47 paragraph 5.11(2).
  3. The electronic bill failed to properly give the name, the SCCO grade, the date from which rates were effective for each fee earner and/or to identify the work done by each fee earner contrary to CPR PD 47 paragraph 5A.2.

Ground 1 – Bill Certification

The Court held that the identity of the signatory must be disclosed within assessment proceedings:

“As is common ground, certification must be by an individual and, if the bill of costs is not certified by the client, the individual must be a solicitor.” Paragraph 35.

“The provisions on which the Appellant relies do not expressly require the signatory to be identified on the face of the certificate. Nevertheless, I agree with the Appellant that as a matter of ordinary interpretation, bearing in mind the purpose of certification, it is implicit that the solicitor who signs the certificates must be readily identifiable on the face of those certificates. It is inherent in the concept of certifying or attesting to a matter before a court of law, at least in circumstances where the CPR requires (as it does here) that a matter is certified or attested by an individual, that the signatory should disclose their identity to the court.” Paragraph 36.

Grounds 2 & 3 – Fee Earner Information

The Court held that the identity of the fee earner had to be provided, stating the following.

For paper bills:

In my Judgment, paragraph 5.11(2) requires both the status and the hourly rate to be given on an individual basis, rather than by reference to categories of fee earners, and it follows that each fee earner should be named in the bill. First, this follows from the language of paragraph 5.11(2) which refers to the status of the “employee” (singular) “in respect of whom costs are claimed” and to the “hourly rates claimed for each such person. – Paragraph 94.

Secondly, the provision must be interpreted purposively. A bill of costs in which claims are made for work done by reference to categories of fee earners, rather than by specifying the work undertaken by each individual fee earner, is intolerably opaque. It results in the paying party and the assessing judge being unable to consider “all the circumstances” when reaching conclusions as to the amount of costs likely to be or to be awarded when applying CPR 44.4 (see Sharp v Aviva at [30])”. – Paragraph 95.

While it is good practice to specify each fee earner’s SCCO grade – and, if it is not given, a paying party may request such information and the court may order its provision – I do not consider that the rules and practice direction require fee earners’ SCCO grades to be specified in a paper bill of costs.” – Paragraph 100.

However, the Court did warn:

Accordingly, I agree with the Costs Judge that the Respondent was not required to specify the SCCO grade of each fee earner in the paper bill of costs. I also endorse his observation that, if a receiving party chooses not to provide such information, doubt will be resolved in the paying party’s favour.” – Paragraph 103.

For electronic bills:

The Judge found that the AKC’s bill did not meet the “full functionality” requirement of the electronic bill of costs in that:

  • It did not include the names (or initials of fee earners).
  • It did not provide the information sought in the columns headed “LTM” or “LTM Name”.
  • It did not provide the grade for each (or indeed any) fee earner.

In respect of the grade column:

While I have found that it is not a breach of paragraph 5.11(2) not to provide the SCCO grades in the paper bill, electronic bills are required to be more informative and more transparent than was required for paper bills to be compliant. (Paragraphs 108 to 111).

Conclusion 

The Court held that the receiving party should no longer withhold basic information as to who had done the work claimed within the bill of costs, when the rules required information such as identity, grade, professional qualification, and post qualification experience.

The Judge granted permission to appeal on all three grounds (to the extent indicated on ground two).

COMMENTS

The decision reminds us that the information provided in a bill of costs, whether it be an old paper bill or in the new electronic format, must allow the paying party to understand the costs claimed, in a clear and comprehensible way.

To avoid uncertainty (and with the added benefit of being more transparent), we made the decision as a firm to move away from hybrid bills very early on and we produce electronic only bills in all cases allocated to the multi-track. We find the electronic format works well and is easier to manage than a hybrid bill.

When signing the bill, an individual or solicitor is certifying compliance with the indemnity principle (Bailey v. IBC Vehicles Ltd [1998] EWCA Civ 566). As a firm we strive to assist our clients with this compliance, not least through our vigorous checking procedures. We have also already adapted our templates to include further information about who is signing the bill of costs.

With reference to fee earner information, we always provide sufficient information – even when dealing with old format paper bills where electronic costing is not required. We have found that this approach works better for us and our clients, as well as the paying parties in receipt of our bills. When the new electronic format bills were introduced, it seemed a natural progression to continue this practice for new electronic format bills too, and we are glad we did!

If you would like any further information about us or what we do, please contact me or one of my colleagues and we will be happy to help.

A copy of the full Judgment can be found here: https://www.bailii.org/ew/cases/EWHC/QB/2021/2607.html

Ben became a Law Costs Draftsman after completing his law degree (LLB) in 2010. Ben has over 11 years’ experience in costs and qualified as a Costs Lawyer in 2019.

Since then Ben has accumulated experience in a wide range of costs matters, undertaking work for both paying and receiving parties in areas including catastrophic personal injury, clinical negligence, professional negligence, immigration, land disputes and high-value contractual disputes. He is familiar with all aspects of costs work including bill drafting, costs budgeting and advising / negotiating at all levels, including the Supreme Court.