Court of Appeal confirms a Bill of Costs can be struck out if it fails to provide adequate fee earner information

In AKC -v- Barking, Havering & Redbridge University Hospitals NHS Trust [2021] EWHC 2607 (QB) the Court of Appeal confirmed that a High Court judge, Mrs Justice Steyn, had acted appropriately in striking out a bill of costs because it did not identify which lawyers worked on the case.

Lord Justice Newey, backed by Lord Justice Dingemans and Lord Justice Lewis, agreed that the right course was to strike out the existing bill of costs and order the claimant to serve a replacement which complied with the Civil Procedure Rules.

Background

In a clinical negligence matter, the claimant filed a bill partially on paper and partially electronically (as was allowed).  The defendant applied to strike out the bill based on the fact that the signatory of the bill of costs could not be identified and the bill of costs failed to provide proper fee earner information. The bill was not struck out by the costs judge.

On appeal in the High Court it was held that the failure to be able to identify the person who signed the bill meant it did not comply with the rules and that it should be struck out. The claimant was therefore ordered to file a new bill of costs. This decision was discussed here by Andrew McAulay and Matthew Rose.

The decision of the High Court judge was then appealed to the Court of Appeal, which upheld it. Here are some conclusions from the appeal.

You must provide the fee earners’ status in a paper bill of costs

In the appeal ruling, Newey LJ said that a paper bill did not strictly have to include fee earners’ names, but the bill in this case did not fully meet the requirement to give fee earners’ status. In the absence of a fee earner’s name, there is still a requirement to state any professional qualification of a fee earner and, unless the SCCO grade is given, the years of post-qualification experience.

You must identify every* fee earner in a Precedent S bill of costs

The electronic bill provided no names or initials of anyone but counsel, and grades were not specified. Names were provided only once the defendant made a request under CPR Part 18.

On the electronic bill, Newey LJ agreed with Steyn J that without a breakdown of work undertaken by each individual, it was impossible to know what they could claim for. The paying party needs to be able to check the experience and expertise of fee earners when considering whether the rate claimed was reasonable. The name of each fee earner involved (with one exception, see below) must be included in the electronic bill of costs. 

A receiving party who elects to use the Precedent S spreadsheet format must include in the bill of costs information sufficient to enable the columns of worksheet 5 to be completed. There is no escape from this requirement, as an electronic bill in ‘any other spreadsheet format’ must also provide as much fee earner information as a duly completed Precedent S.

* You can still ‘white-label’ work done by an outside agency:

The omission of the name of the “Medico-Legal Assistant” was not explained. However, it was suggested that the receiving party’s solicitors may have outsourced the work in question to an agency with the result that it was not appropriate to insert the name of an individual. As Mr Marven pointed out, Crane v Canons Leisure Centre [2007] EWCA Civ 1352, [2008] 1 WLR 2549 shows that delegated work can sometimes be charged for by way of profit costs rather than disbursements. It seems, therefore, that even a bill in Precedent S format need not necessarily include anything in the “LTM Name” column of worksheet 5 in respect of work delegated to an outside agency.

A bill of costs which fails fully to comply with the rules will not invariably be struck out:

Typically, a defect will, at most, warrant a lesser sanction. Omitted information can be provided later in replies to points of dispute or via a request under CPR Part 18 to avoid the bill being struck out. However, transparency about the fee-earners who worked on a matter is likely to allow negotiations to proceed more smoothly and avoid wasted costs.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

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