Author: Joanne Chase

Optimising Costs Management: Part 2

Joanne Chase1 Comment
You can listen to the blog here

This is the second entry of a three part series on costs management. Part 1 can be read here. Part 3 can be read here.

CPR 3.15(5) confirms that the amount recoverable in respect of preparing the Precedent H is capped at 1% of the approved costs budget but all other costs of the budgeting and costs management is capped at 2% . Twice as much is therefore permitted for costs management as to prepare the costs budget. Why is this the case?

This 2% allows for preparation of Precedents R, all of the negotiations on budgets, analysis, advice, preparation of supplementary documents for CCMC and the costs lawyer’s attendance at CCMC (or drafting instructions to counsel). Following the CCMC the budgets will need to be finalized and agreed before being filed at court. But that is not the end of costs management.

Ongoing monitoring of costs incurred after the budget has been set makes staying within budget significantly simpler, while still achieving a good outcome for your client, and it will mean that problems are identified early and can be rectified.

However, if circumstances change following the setting of the costs budget then CPR 3.15A allows for revision and variation of costs budgets on account of significant developments. Indeed a party must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions, and must do so promptly. If you know how much scope is left in each phase then it will be much clearer what revisions are required, thereby allowing it to be dealt with ‘promptly’.  

If you do exceed your costs budget without a good reason, those costs are not recoverable from your opponent. Of course, you may be able to recover any overspend from your client, depending on the terms of your retainer, but then it is absolutely vital that you have kept your client informed regarding their legal costs throughout the claim.

For example, if you did not get the outcome you wished for at the CCMC it should be common practice to provide a client with a copy of the approved costs budget and an explanation given regarding why the approved costs differs from the filed costs budget.

In ST v ZY [2022] EWHC B6 (Costs) the importance of keeping a client informed regarding their legal costs was emphasized.

This claim involved a fatal motorcycle accident where ST, the deceased’s partner, brought proceedings on behalf of the deceased’s estate, herself and her 4 children as dependents. The matter was budgeted, but when the matter settled the Court ordered that the Defendant should pay ST’s costs of the claim only on behalf of a single Claimant as a dependent, and as administratrix of the deceased’s estate.

Costs between the parties were then settled by agreement between the parties. However, because she was a protected party, an assessment of the Claimant’s solicitor and own client costs was ordered.

At the assessment it was identified that the Claimant’s solicitors had failed to advance any argument to support a good reason to depart from the budget in relation to the majority of the exceeded phases and had offered to accept the approved figures. In doing so they conceded £25,052.69 which they then sought to recover out of the Claimant’s damages. The judge noted:

“Telling the client that some costs might not be recovered from the other side is not sufficient. ST should have been told that the budget was being exceeded by a wide margin and that, as a result, those costs might not (and, indeed, almost certainly would not) be recovered from the other side.”

Focus is often placed on monitoring the budget to identify whether it needs to be revised in the event of a significant development. However, managing clients’ expectations of costs is required, and informing them if a budget has been exceeded is vital. Without this, it is highly unlikely that an overspend will be recoverable.

Given the CPR’s allowance for recovery of costs management fees there is no good reason not to instruct a costs professional to assist with all aspects of costs management following preparation of the costs budget.

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

Multiple Claimants under New Fixed Costs rules

Joanne ChaseLeave a comment

The Fixed Recoverable Cost Consultation Paper published in 2019 proposed that in claims with multiple claimants “…where the cause of action is the same and the claim itself is either similar or subsidiary to the principle claim… we propose that the [Fixed Recoverable Costs] for each additional claimant should be set at 10% of that for the principal claimant”. At the time of writing we do not know what final form the Rules will take. However, they will need to be worded carefully to avoid injustice where there are multiple claimants who are separately represented, for example where there is contributory negligence.

Separate Representation

At a Judicial Panel hosted by Park Square Barristers on 12 July 2022 I asked how the court would approach multiple claimants who were separately represented. In particular I pointed out that the rule appeared to be predicated on the assumption that subsidiary claimants would benefit from sharing work from the primary claim and in reality additional claimants do not necessarily generate significantly more work. This is clearly not the case where parties are separately represented.

DDJ Rafferty and Recorder Richard Paige both agreed that in these circumstances the sensible approach would be that separately represented claimants would not be limited to 10% of the fixed costs.

Court’s Jurisdiction to remedy injustice

The court’s power to remedy any defect or injustice in the FRC rules may be limited. In Aldred -v- Cham [2019] EWCA Civ 1780 the claimant argued the court should allow a disbursement for an opinion obtained for approval of a settlement on behalf of a protected party under CPR 45.12(2)(c). CPR 45.12 sets out various disbursements the court may allow, and (2)(c) allows the court to award any disbursement incurred as a result of “…a particular feature of the dispute”.

In Aldred the Court of Appeal held that the claimant’s status as a protected party was a feature of the claimant, not a feature of the dispute, and that the court could not therefore allow the disbursement. In effect the court held that in the case of fixed costs the court is bound to applying the letter of the rules, and that deficiencies or injustice is a matter for the Rules Committee.

Conclusion

It will be important for practitioners to carefully consider the wording of the rules once they are published. Solicitors considering representing claimants in situations such as this should be careful to advise of the possibility of a limit on recovery of costs if the rules are unclear. Fixed costs rules are generally interpreted strictly, and lawyers should not assume that injustice may be remedied by appeal.

Should you have any questions, you can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Contracting Out of Fixed Costs

Joanne ChaseLeave a comment

In Doyle -v- M&D Foundations and Building Services Ltd [2022] EWCA Civ 927 the Court of Appeal held that a consent order which provided that the Defendant would pay the Claimant’s costs “to be the subject of detailed assessment if not agreed” was an agreement to contract out of the Fixed Costs regime. The Claimant’s costs were therefore to be assessed on the standard basis.

Background

The Claimant was an employee of the Defendant. The Claimant was injured during the course of this employment whilst working on a building site. The Claimant commenced a claim against the Defendant under the Pre-Action Protocol for Low Value Personal Injury (the EL/PL Protocol).

The Defendant made a Part 36 offer. As it was less than 21 days before trial the Claimant responded stating that quantum was agreed but the terms of settlement would need to be set out in an Order. The agreed order provided that the Claimant’s costs would be “subject of detailed assessment if not agreed”.

Analysis

The Court distinguished the case from Ho -v- Adelekun [2019] EWCA Civ 1988 on the basis that in that case it had been clear that the parties intended to compromise on Part 36 terms (which would have engaged Part 45). In this case, the Claimant had expressly stated that the Part 36 offer was rejected.

The Order did not include the words “on the standard basis”. The Court rejected the Defendant’s argument that this meant the Court should assess the fixed costs. It held that where costs are “assessed” they are inherently not “fixed”. The meaning of “costs to be subject to detailed assessment” was therefore that costs be assessed on the standard basis.

Conclusion

The Court held that “if parties wish to settle on [a fixed costs basis] it is easy enough to say so.” Parties should ensure that the basis of settlement / assessment is clear. An agreement for costs to be assessed is an agreement to contract out of fixed costs.

Should you have any questions, you can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Delegate less important work to less expensive fee-earners

Joanne ChaseLeave a comment

In Rushbrooke UK Ltd v 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) HHJ Paul Matthews, sitting as a Judge of the High Court in Bristol, considered the costs claimed by a successful respondent. 

The claimant brought proceedings to restrain presentation of a winding up petition. That application lasted less than one day and was dismissed. Therefore the Court assessed the costs summarily as per CPR 44 PD 9.2.

An updated costs schedule was not served in time, but it was permitted because, in general, costs statements are short, and the substance of them can be taken on board in a matter of minutes. The judge found that the applicant had sufficient time to consider and take instructions on the contents of the updated costs schedule, and would suffer no prejudice as a result.

The judge then considered the amount of the respondent’s costs.

The applicant objected to the respondent’s hourly rates. The relevant hourly rate for a grade A solicitor practising in Bristol (national band 1 of the costs guideline hourly rates) is £261. However, he charged at the rate of £350 per hour.

Secondly, it was complained that there was no delegation to a less expensive fee-earner for those parts of the work which could properly be done by such a fee-earner. However, no attempt was made to identify work which could have been more properly incurred by a lower level of fee-earner.

The judge decided that both criticisms of the respondent’s costs had some force. The new costs guideline hourly rates came into force in October 2021. He noted that they were merely guidelines, but they represented a recent consensus view of what average work should cost in particular areas of the country.

He did not believe that the work done was above average either in difficulty, or in complexity, or in novelty, or in importance to the client, or in some other way. A figure slightly above the guideline would not be too high but a figure £89 (34%) above the guideline rate was too high.

The judge was also unhappy that everything was done by a single grade A fee-earner. Should there be no one else to delegate to, then the question was whether the costs were reasonably incurred and reasonable in amount. Reasonableness takes account of potential delegation. In the present case, for whatever reason, it seemed that it had simply not been considered. Moreover, it was not for the paying party to have to identify work which could have been done by a more junior fee-earner.

For both these reasons, the judge considered that the quantum of costs claimed by the respondent was too high. A summary assessment of costs is not a “line by line” exercise, but much more “broadbrush”, see for example Football Association Premier League v The Lord Chancellor [2021] EWHC 1001 (QB). The total sought by the respondent was £8,988, including VAT. Looking at the matter in the round, and reducing the solicitors’ costs for both excessive rates and failure to delegate, the judge awarded a total of £7,920, a reduction of around 12%.

Electronic bills of costs can be struck out if they fail to identify fee earners

Joanne ChaseLeave a comment

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.

Fee earners’ statuses, but not their names, are required 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.

Every fee earner must be identified in a Precedent S bill of costs (with one exception)

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.

Work done by an outside agency can still be ‘white-labelled’, the external fee earner’s name is not required

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.

Should you have any questions, you can contact the team at CivilCosts@clarionsolicitors.com

Who can sign a Bill or Statement of Costs?

Joanne ChaseLeave a comment

A Bill or Statement of Costs must be signed. This requirement is contained at CPR 47 PD 5.21 in the case of a bill, or CPR 44 PD 9.5(3) for a statement. But one question which is often asked is who may sign a bill? The certificates on the precedents refer to a “Partner”, but is a partner in fact required to sign?

CPR 44 PD 1.1 states that“…in respect of any document which is required by Practice Directions 44 to 47 to be signed by a party or that party’s legal representative, the provisions of Practice Direction 22 relating to who may sign apply as if the document in question was a statement of truth. Statements of truth are not required in assessment proceedings unless a rule or Practice Direction so requires or the court so orders.”

Statements of Costs

CPR 22 PD 3.1 states “in a statement of case… the statement of truth must be signed by (1) the party or his litigation friend; or (2) the legal representative of the party…” A legal representative is defined at CPR 2.3 as “(a) a barrister; (b) solicitor; or (c) a solicitor’s employee”.

CPR 44 PD 9.5(3) states that “the statement of costs… must be signed by the party or the party’s legal representative”. This falls within CPR 44 PD 1.1 and CPR 22 PD 3.1 as above, and therefore a statement of costs may be signed by the party’s “legal representative” as defined above. A statement of costs therefore does not need to be signed by a Partner. Indeed, according to the Rules the statement of costs could in theory be a trainee or even a secretary.

Bills of Costs

The position is not so clear for a bill of costs: CPR 47 and the associated practice direction does not contain any rule that the bill of costs must be signed by the party or the party’s legal representative. Rather, CPR 47 PD 5.21 states that the bill must “…contain such of the certificates [annexed to the practice direction] as are appropriate”.

The certificates to be included can be found here and state “all certificates must be signed by the receiving party or by his solicitor”. However, it is not clear that a precedent document can, of itself, impose any obligation on a party as it is supplementary to but does not form a part of the rules.

In Bailey -v- IBC Vehicles [1998] EWCA Civ 566 it was held that “the signature on of the bill… is effectively the certificate by an officer of the Court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge…”

By analogy, CPR 3.13(5) states that a costs budget must be verified by a statement of truth “signed by a senior legal representative” of the party, and it was held in Americhem Europe Ltd -v- Rakem Ltd [2014] EWHC 1881 that a legal representative is someone who “is representing in a legal capacity” and that a costs draftsman, who simply prepares the bill, is not. This authority therefore suggests that the individual should be directly engaged in or at least have capacity to carry out a reserved activity (i.e. an activity which is reserved under the Legal Services Act 2007) rather than an activity ancillary to a reserved activity. In other words, the test is whether the individual is entitled to carry out the reserved activity to which the bill related, such as litigation.

Furthermore section 69(2A) of the Solicitors Act 1974 provides that a solicitor’s bill to his client must be signed “by the solicitor or on his behalf by an employee of the solicitor authorised by him to sign”. This raises the question as to whether a bill certificate may be signed by an employee of a solicitor but that the “buck stops” with the solicitor – i.e. any employee may sign but if it is wrong the solicitor is responsible. This was the finding in Gempride -v- Bambrah [2018] EWCA Civ 1367 in which the solicitor had signed a bill which was wrong. She subsequently argued that she had relied on the costs draftsman that it was accurate; the Court held that whilst it may have been drafted by others she was ultimately responsible for the content.

In the opinion of the author, a bill of costs does not need to be signed by a partner but must be signed by a solicitor and not a “legal representative”. It is possible that a Fellow of the Chartered Institute of Legal Executives (being entitled to carry out reserved activities) might also be entitled to sign.

Summary

There is no requirement that a bill or statement of costs must be signed by a partner. Whilst it is theoretically arguable that any employee of a solicitor may sign a statement or bill of costs (1) the solicitor will ultimately be liable even if the document is signed on their behalf, and (2) it would in almost all cases be needlessly risky to do so as it could give rise to significant argument about whether the document had been properly certified. Therefore in general, bills and statements should be signed by a solicitor.

You can find out more about our services here or you can contact the Costs Team at CivilandCommercialCosts@clarionsolicitors.com

Avoiding Challenges to your Costs IV: Time Recording

Joanne Chase3 Comments

Time spent time recording is time well-spent. Time recording can sometimes seem onerous, particularly when in the midst of tackling some complex and urgent legal problem. However, good time recording supports strong recoveries and avoids client challenges to costs.

This is the fourth blog in a series covering various aspects of solicitor / own client relationships. You can find the other blogs here:-

Avoiding Challenges to your Costs I: Invoicing Clients

Avoiding Challenges to your Costs II: What is an Invoice

Avoiding Challenges to your Costs III: Talking about Money

What is Time Recording?

Time recording and attendance notes are often combined, but they are actually separate. Attendance notes are to keep a record of discussions and reviews of documents for the lawyer to refer to later. For example, recording the client’s instructions in relation to making an offer. The purpose of time recording is to record and justify the time spent.

Why Record Time?

Whenever a solicitor raises an invoice to their client (see Avoiding Challenges to your Costs I: Invoicing Clients) the client has a right to challenge those costs. We will consider the test for challenging costs in more detail in a future blog, but in short it is whether the costs claimed are reasonable. Alternatively, the client may be able to recover their costs from the other side.

In either case, the solicitor’s time may ultimately come under scrutiny. High quality time recording notes protect the solicitor’s time from challenge.

Key Elements of Time Recording

Every firm has different styles and standards of time recording, but it should always contain a few key elements:-

  • Who did it;
  • When it was done;
  • How Long it took;
  • What you did; and
  • Why you did it.

Most time recording will include Who, When, and How Long, but What and Why are often overlooked and sometimes missed out completely. By keeping in mind why you are time recording, you will avoid these mistakes.

How to Time Record

The Who, When and How Long will usually be recorded automatically. The What and Why will usually require the fee earner to write some kind of narrative. A time recording note does not need to be long, and in fact should usually be kept short. For example:-

Call to the client to discuss the opponent’s offer dated 1 June 2021

This note gives plenty of information to explain what was done and why it was necessary. It is clear that it was a telephone call, and that the purpose was to consider an offer.

It is also usually better to refer to individuals by their status in the proceedings rather than by name. For example, “call to Counsel” rather than “call to Steve”. This is because time recording notes are usually for the benefit of someone who was not directly involved in managing the proceedings. Using names can make it hard for a client or judge to follow, particularly when there are a lot of different people such as witnesses, experts, counsel and parties involved.

Summary

Good time recording leads to better recovery and fewer client challenges. Practicing good time recording, and training new staff to time record effectively will pay dividends in recovery rates and avoid challenges.

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

Part 36 – Important changes to Interest

Joanne ChaseLeave a comment

From 1 April 2021 a key change to Part 36 means that additional interest will not be payable where the Part 36 offer is accepted after the relevant period unless specified within the offer.

In accordance with CPR 36.5(4) a Part 36 offer is treated as inclusive of any interest to the expiry of the relevant period. From 1 April 2021 a new rule 36.5(5) provides as follows:-

A Part 36 offer to accept a sum of money may make provision for accrual of interest on such sum after the date specified in paragraph (4). If such an offer does not make any such provision, it shall be treated as inclusive of all interest up to the date of acceptance if it is later accepted.

This rule change is likely to affect only claimants’ offers. However, defendants should be aware of the rule and check the terms of any offers received carefully.

At this stage the meaning of the rule is somewhat ambiguous. It is not clear whether it means that an offer may provide that if accepted after the expiry of the relevant period there will be a liability to pay further interest, or whether it simply means that the offer may exclude further interest from the terms of the Part 36 offer (i.e. the offer will become an offer for part of the proceedings after it has expired). These questions, and the effect of an offer which excludes interest, are only likely to be clarified when they have been put before the Courts. As the rule applies only to offers made on and after 1 April 2021, this is unlikely to be for some time.

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

Avoiding Challenges to your Costs III: Talking about Money

Joanne Chase3 Comments

Discussing fees with a client is often one of the most stressful parts of a solicitor’s job. Social taboos around talking about money run deep; studies have consistently shown that personal finances rank high on the list of topics people find it hardest to talk about. Yet they have also shown links between reluctance to talk about money and the risk of falling into financial hardship. Getting these conversations right can protect you from challenges, and protects your client from falling into financial difficulty.

This is the third blog in a series covering various aspects of solicitor / own client relationships. You can find the other blogs here:-

Avoiding Challenges to your Costs I: Invoicing Clients

Avoiding Challenges to your Costs II: What is an Invoice

Avoiding Challenges to your Costs IV: Time Recording

When it comes to money, being proactive is key. Providing an early and accurate estimate of costs will enable your client to plan ahead and avoid difficult conversations later. You should also keep your client informed as the case progresses, and schedule regular updates to ensure that you are on track and the client is informed. If things change, update the client as soon as possible and explain what this means in relation to costs.

An accurate estimate helps your client understand what costs you are likely to incur and also allows them to plan the litigation. A client is far less likely to dispute your fees if they had a good idea of what it would cost in advance. And if they do dispute your fee, you can refer to the estimate and point out that they knew the cost when they authorised the work. If you have exceeded the estimate, you will be able to explain why the work done went beyond its scope.

Preparing an Estimate

Preparing an estimate can seem daunting, but following these simple rules will make estimates easy:-

  • Estimates should not be generic
  • Plan the case and how much time each element will take, e.g:-
Pre-Action
Review client documents4 hours£400
Letter of Claim2 hours£200
Advice and correspondence with client6 hours£600
  • Be realistic about the time you will spend. We tend to underestimate how long things will take. Bear that in mind.
  • Do not overthink it. Include anything you think is likely to happen, but do not try to estimate for every eventuality.
  • Factor in disbursements, such as court fees, counsel’s fees and experts’ fees

Communicating with the Client

One fear lawyers have is that they will “scare off” clients if the estimate is too high. However, most clients will appreciate transparency on fees. And if they are unwilling or unable to pay, it is better to know before you do the work. There is no benefit to you in obtaining work which is not profitable.

Once you have provided the estimate to the client, make sure that you give regular fee updates. For example, using the example estimate above when you send the letter of claim to your client you might include a sentence saying “I confirm that our unbilled fees to date total £xxx” and either confirm that this is below your estimate, or explain why it is above your estimate. If your client later questions your fees you will be able to refer them to your letter where you told them the level of your fees.

Conclusion

By preparing an estimate and updating your client about fees you avoid difficult conversations about fees at the end of the matter. If your client later disputes your fees you are in a strong position to resist any reductions because you can argue that they continued to instruct you in full knowledge of what the fees were. An estimate is a powerful tool in ensuring recovery of your own fees, and also in enabling your client to manage their finances.

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

Avoiding Challenges to your Costs II: What is an Invoice

Joanne Chase3 Comments

Until an invoice is delivered in accordance with the Act, a solicitor does not have any right to take client money. Doing so could (and probably would) be a breach of Rule 5.1 of the Solicitors Accounts Rules. Unfortunately there is no further explanation within the Act as to what a statute invoice is or what information it must contain.

This is the second blog in a series covering various aspects of solicitor / own client relationships. You can find the other blogs here:-

Avoiding Challenges to your Costs I: Invoicing Clients

Avoiding Challenges to your Costs III: Talking about Money

Avoiding Challenges to your Costs IV: Time Recording

Whether or not an invoice is a “statute” invoice is determined with reference to the authorities. There are a number of factors which the Court will take into account, but it is important to recognise that this is not a “check box” exercise. The mere fact that one or more factors are missing will not automatically mean that the invoice is not a statute invoice.

The following factors will be relevant:-

  • If the invoice is raised before the conclusion of the case, whether the solicitor is entitled to charge their client at that point (Underwood, Son & Piper v Lewis [1894] QB 306 A.L.). There is a rebuttable presumption that a solicitor has no right to invoice on an interim basis unless there is a contractual right to do so (Chamberlain v Boodle & King [1982] 1 WLR 1443 and Davidsons v Jones-Fenleigh [1980] Costs LR 70).
  • Whether the invoice contains a statement that it is a statute invoice and is final for the period covered (Adams v Al Malik [2014] 6 Costs LR 985).
  • There should be sufficient information within the bill to identify the work to which it relates (Ralph Hulme v Gwllim [2002] EWHC 9034 (Costs)). This could include a date range or breakdown of costs.

A final invoice also may only include work actually done, and cannot include a claim for future time. Any invoice which includes a claim for future time is therefore likely to be deemed to be an invoice for a on account of costs.

In summary, a client invoice should be clear that it is final for the period covered and identify the work done. Solicitors’ retainers should be careful to incorporate terms entitling them to raise interim invoices during the case.

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