Following the introduction of increased hourly rates from 1 January 2026, please see my blog below setting out the new rates and what that will mean going forward.
Tag: Bill of Costs
Understanding the consequences of serving a defective bill of costs
In Hyder -v-Aidat-Sarran [2024] EWHC 3686 (SCCO), Deputy Costs Judge Roy KC dealt with two applications: from the Claimant for relief from sanctions for late service of the bill of costs; and from the Defendants who applied under CPR 44.11 to strike out the Claimant’s claim for costs due to serious and repeated failures to comply with rules, practice directions and Court orders and/or unreasonable or improper conduct during the detailed assessment proceedings.
Background Information
The applications were made against a background of procedural failures by the Claimant. A defective bill of costs, which had been prepared in the wrong format, had been served late. The Defendants served Points of Dispute in response to the defective bill, which highlighted numerous other failings, including a failure to certify and claims for costs to which the Claimant was not entitled. In the absence of Replies to Points of Dispute, the Defendants applied for an Unless Order.
As there was no serious dispute that the Claimant’s bill was defective, and on the strength of assurances given by the Claimant that an amended bill of costs had been prepared which would be served at the same time as the request for detailed assessment was filed, an Unless Order was made by consent. The Unless Order required the Claimant to file a request for detailed assessment hearing by 13 August 2024. In default of which the Claimant’s costs would be disallowed, and the Claimant would be required to pay the Defendants’ costs of the detailed assessment proceedings.
In the event, the Claimant filed the bill of costs together with a request for detailed assessment 1 day late by email, notwithstanding that the use of CE-File is compulsory in the Senior Court Costs Office. Although by this time the bill was in the correct format, none of the previously identified defects had been rectified and the filed bill introduced further defects in addition to those previously identified.
The Claimant was therefore required to apply for relief from sanctions. The Defendants opposed the application on grounds that the bill was so severely defective the Claimant could not properly be said to have belatedly complied with the Unless Order and they also applied for an order to strike out the claim for costs under CPR Rule 44.11, in any event.
The Judge dealt with each application in turn.
- The Claimant’s application for a relief from sanctions
The Judge referred to the Denton Principles, which is a three stage test used to guide the Court when deciding applications for a relief from sanctions under CPR 3.9.
Stage 1 was considered in relation to whether the service of a defective bill a day late was non-compliance with the order and whether that was a serious or significant breach.
The Judge stated that he was ‘ultimately against’ the Defendants submissions that the bill was so defective it should not be described as complying with the order because the bill was served within the meaning of the order in that the Unless Order did not specify a requirement to serve a fully compliant bill. Relief from sanctions was therefore granted.
- The Defendants’ application under CPR 44.11 to strike out the Claimant’s claim for costs
CPR 44.11(1) sets out the Court’s powers to address misconduct, which may apply where:
(a) a party or their legal representative fails to comply with a rule; or
(b) a party’s or legal representative’s conduct is unreasonable or improper.
If either limb of CPR Rule 44.11 are met, then the Court may apply one of the sanctions in CPR 44.11(2), which are:
- disallow all or part of the costs which are being assessed; or
- or order the party at fault or that party’s legal representative to pay costs which they have caused another party to incur.
The Judge found that both limbs of CPR 44.11(a) and (b) were made out. He found that in addition to the defects identified in the original bill, the Claimant had served an electronic bill which failed to comply with most of the requirements of electronic bills in Practice Direction 47.
The Judge agreed there were multiple significant failures within the bill, with some more serious than others. He also found it ”beyond belief” that the defects were not rectified in the electronic bill, despite being identified in the Points of Dispute. The Claimant also failed to serve evidence to explain or address the failings and failed to apologise for (or even acknowledge any of the failings) before the hearing. This was described as “serious and troubling lack of insight and contrition on behalf of the Claimant’s solicitors.”
It was also held that it was not appropriate for the Claimant’s solicitor to blame their costs draftsman for the errors on the basis that the costs draftsman is the solicitor’s agent, and the solicitor is vicariously liable for the draftsman’s failings (Gempride v Bamrah [2018] EWCA Civ 1367). The solicitor also had direct supervisory responsibilities which they did not fulfil in relation to reviewing and checking the bills of costs.
The Judge therefore found that “there have been multiple compound breaches. They have been serious. They have been persistent. They are unexplained, and they are inexcusable for the most part.”
It was then left to the Judge to decide upon the severity of the sanction to impose. Although a complete strike out of the claim for costs was possible, the Judge decided against that on grounds that the Court of Appeal had found that sanction to be draconian, even in cases of serious misconduct. Instead, the Judge recognised that a severe sanction was warranted and Ordered that the Claimant’s assessed costs would be subject to a 75% reduction.
Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com
An Insight into the Court’s Approach to Disproportionate Costs following a line-by-line assessment
Introduction
The judgment of Costs Judge Nagalingam in XX & Anor v Young & Anor [2025] EWHC 2073 (SCCO), provides a useful breakdown on how a bill might be reduced after a line-by-line assessment to yield a proportionate figure by taking into account the factors in CPR 44.3(5) and the Court of Appeal’s approach in West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220.
Background
Costs Judge Nagalingam, undertook a three-day line-by-line assessment of the costs in XX v Young as the Defendant had raised the issue of proportionality. He held that the costs were disproportionate and therefore the bill of costs total was reduced from £517,985.00 to £339,565.16, a reduction of almost 35%. Despite this reduction, the Judge held that the total sum remained disproportionate and subsequently further reduced the bill following the line-by-line assessment.
The Judgment
CPR 44.3(5)
In order to assess proportionality, the Judge relied on several factors outlined in CPR 44.3(5) which states that “Costs incurred are proportionate if they bear a reasonable relationship to:
- the sums in issue in the proceedings;
In this case the Judge considered the realistic range of possible outcomes in the case to be £149,000 (the settlement sum) to £2.5million (the pleaded sum). The likely value of the claim was determined by considering the accident circumstances, the factor of contributory negligence and the complexity of the case. The Judge concluded that the sums in issue would realistically have been closer to £149,000 than the £2.5million fully pleaded claim.
(c) the complexity of the litigation;
The Judge made clear that whilst the litigation was not complex it was also not straightforward. Liability was in dispute, significant injuries were sustained and the medical complexity created legal complexity in quantifying the general damages and past and future losses. Liability also remained a factor under consideration.
(d) any additional work generated by the conduct of the paying party; and
In this case, the Defendant disputed liability until the joint settlement meeting and did not make a good and early Part 36 offer or protective settlement proposals prior to the joint settlement meeting. Therefore, it was determined that the Claimant could not be criticised for continuing with the litigation.
(f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.
The Judge concluded that the receiving party’s solicitors were at times dealing with a vulnerable client due to factors such as injury recovery, isolation, the Claimant’s age and language barriers.
Surveillance / Exaggeration
In West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 (17 July 2019) it was outlined that the factors in CPR 44.3(5) are not an exhaustive list. Surveillance evidence and the Defendant’s attempts to seek findings of misconduct and exaggeration were also considered.
The allegation based on surveillance evidence was that that the Claimant had recovered more than reported to the experts and consequently the claim settled at a sum far less than pleaded. However, the Judge declined to engage in a de facto retroactive trial of exaggeration as an issue and noted that if the Defendant had wished to pursue this factor of exaggeration, then they should not have settled or should have negotiated settlement terms which included a percentage based costs order.
Internal Communications
The Judge referred to West in XX v Young, opining that a line-by-line assessment must be completed first and that “one must be careful not to facilitate a result which would amount to double-counting of deductions”. Therefore, reductions were only applied where it was considered that costs were unreasonably incurred or unreasonable in amount. Although concerns were raised regarding the internal time claimed, this did not mean that internal communications were to be reduced irrespective of the circumstances.
Whilst the costs of internal communications had already been reduced from £27,724.50 plus VAT to £22,946.15 plus VAT following a line-by-line assessment, it was later concluded that the costs for internal communications were to be further reduced to £10,000 plus VAT using a broad-brush approach based on the facts and circumstances in the case. The bill total was therefore reduced to £324,029.77.
Conclusion
Overall, the Judge concluded that the assessed sum was “disproportionate in all the circumstances” through considering the factors within CPR 44.3(5) as well as the points of dispute, replies, skeleton arguments and submissions.
Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors.
You can contact the team at civilandcommercialcosts@clarionsolicitors.com
Disbursements & the E-bill
A disbursement is a payment made on behalf of a client or third party, for which reimbursement is subsequently sought from the client. In COP terms, this means a payment made by the Deputy that needs to be reimbursed by the Protected Party.
With the new E-Bill, all work now needs to be categorised. This also applies to disbursements. The types of categories in the E-Bill are as follows:
- travel expenses
- costs draftsman’s fees
- counsel’s fees
- court fees
- bank fees
- internal solicitor fees
- external solicitor fees
- OPG fee
- courier fees
- land registry fees
- expert fees
- other
Many of the items in the list do not need to be assessed and would be better placed in the annual Deputyship report (e.g. court fees) and as such, this has caused some confusion as to what disbursements need to be assessed and what disbursements do not need to be assessed. As a result of the confusion, we obtained guidance from the costs officers.
According to the Costs Officers, the disbursements that MUST be included in a general management bill for assessment are:
- travel expenses
- counsel’s fees
- bank fees
- land registry fees
- courier fees
- expert fees
The Costs Officers also advised that internal and external solicitor fees would be dependent on the case and the orders made. Whilst these fees are not usually included in general management files, should this come up on one of your matters and you are unsure, please ask us for further guidance.
In certain applications (such as Statutory Wills) there will be no Deputyship report where disbursements can be claimed. In these types of bills, ALL disbursements incurred must be claimed within the bill – if not claimed in the bill you will not be able to bill the disbursement to the client.
For more information, please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.
Electronic bills of costs can be struck out if they fail to identify fee earners
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
The Indemnity Principle in Court of Protection Costs – Why It Is So Crucial
Introduction
To be defined, the indemnity principle states that, “[…] a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives.” (The Senior Courts Cost Office Guide, 2021, pg. 21.) When this principle is applied to Court of Protection costs, it posits that a Deputy cannot claim costs higher than that which they have stated in their client care letter or retainer letter.
The Protected Party is not liable to pay costs higher than those that have been stated in such documents, unless evidence is shown that the Deputy has authority to claim higher rates. The earliest form of the indemnity principle can be seen in the judgement from the case of Harold v Smith [1860] 5 H & N 381.
Over recent years, the hourly guideline rates have been in flux, as we have now landed in the era of 2021 Guideline Hourly Rates. In a climate of changing rates, it is crucial for solicitors to evidence that they have not breached the indemnity principle and it is key for Cost Officer’s to ensure the principle is being maintained. Upon having costs assessed, it is extremely common to see Cost Officer’s requesting evidence the principle has not been breached.
This blog aims to outline why this is so important for a Protected Party and to give a brief overview of the key aspects of the indemnity principle in relation to the Court of Protection.
Standard Basis/Indemnity Basis
Costs in Court of Protection are assessed on the Standard Basis, or Deputies may take fixed costs as outlined in Practice Direction 19B – a supplementary material for the Court of Protection Rules 2017. The Standard Basis simply means that in such instances, a costs judge will permit costs to be recovered that are crucially, proportionate, as well as being both reasonable in amount and reasonably incurred. (See the Court of Protection Rules Section 44.3 for further information.) This basis ensures that costs incurred for a Protected Party’s management period will always be appropriate and justified.
If costs were assessed on the indemnity basis (where the notion of proportionality is absent), Protected Parties would be at risk of being taken advantage of, since they would lack the capacity to argue the costs claimed for work carried out were unreasonable. However, the Mental Capacity Act 2005 negates this possibility, as after it was enacted all Court of Protection Costs were assessed on the standard basis.
Breaching the Indemnity Principle
As already alluded to, the common way the indemnity principle may be breached is through the absence of a Client Care Letter or Retainer Letter. A Client Care Letter is typically the first correspondence a client or Protected Party may receive from the Solicitors once the Court has appointed a Deputy. The letter will outline information regarding the services being provided and perhaps most importantly, the cost of legal services in the form of hourly rates. A retainer letter will function the same way, declaring the costs of the Solicitor’s services set out as hourly rates.
A breach of the indemnity principle may occur where a Deputy has claimed rates for work undertaken that they have not outlined to the client. For example, if one were to charge £200.00 an hour in the bill of costs, but initially informed the Protected Party the hourly rate was £100.00, this a breach of the indemnity principle – the Protected Party is liable to pay an hourly rate of £100.00, but the Deputy is attempting to recover higher costs of £200.00 which were not disclosed to the Protected Party.
Where a Deputy chooses to have their costs assessed, a Cost Officer will review the bill of costs to assess the costs that are recoverable for the Deputy. The Client Care Letter or Retainer Letter must be provided to the Senior Courts Cost Office alongside the bill of costs to evidence that the Deputy has authority to claim such rates. If a Cost Officer cannot locate such evidence, they will subsequently reduce the hourly rate of the work undertaken to that which may have previously been claimed, or assess the bill on the basis that the Deputy will provide such evidence upon applying for a Final Costs Certificate.
It is highly unlikely to see Deputies breaching the indemnity principle intentionally. To effectively comply with the SRA Code of Conduct, Solicitors will always prepare a Client Care Letter outlining their work and rates. The problem arises when this is not presented to the Cost Officer along with the bill and thus upon assessment, the Cost Officer does not know the rates at which the Deputy can claim and consequently reduces them.
Problems in Changing Rates
If the hourly rates for Court of Protection Costs were fixed, evidencing that the indemnity principle has not been breached would be much simpler. However, considering we are now into the third set of hourly rates Solicitors can claim, this complicates matters. For a Deputy to claim new rates that come into force, they have an obligation to inform the Protected Party that the rates have changed; by way of updating their Client Care Letter.
It can often be seen on assessment that Solicitors fail to amend the Client Care Letter before the change in rates comes into action, in which case it becomes difficult to claim the higher rates from when they may have commenced.
To illustrate, if hypothetical higher rates came into effect on 30 September 2022, but a Client Care Letter was not updated until 30 October 2022, it would be a breach of the indemnity principle to claim these higher rates from 30 September 2022, because the Protected Party is only liable to pay the costs that have been stated, which up until 30 October 2022, were different rates. Regardless of when the new rates may have came in, if the Protected Party was not aware of such rates, they are not required to pay costs higher than those which have been stated. Therefore, it is essential for Solicitors to amend their Client Care Letters in a timely manner, to ensure they can maximise new rates when they come into force.
Final Remarks – Protecting the Client
From what I have explained in this blog, it should be clear that the indemnity principle serves to Protect a Protected Party. The principle ensures the costs incurred by Deputy’s are always fair and balanced. Recovering costs in Court of Protection work may seem complicated at times, especially when there has been several changes to the hourly rates. However, it is important that the necessary measures remain in place to ensure Protected Party’s pay costs that are fair and proportionate to the work carried out.
For more information on what has been discussed, I invite you to consider the following resources:
- Senior Courts Cost Office Guide: https://www.judiciary.uk/announcements/senior-courts-costs-office-guide-the-2021-version-is-now-available/
- Court of Protection Rules 2017: https://www.legislation.gov.uk/uksi/2017/1035/contents
- Solicitors’ Guideline Hourly Rates: https://www.gov.uk/guidance/solicitors-guideline-hourly-rates
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.
Who are the interested parties and who should be served in COP cases?
An interested party is anyone with a financial interest in the outcome of the assessment. Rule 47.19 of the CPR enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment.
Practice Direction 47, para (18.2) explains what is or is not a ‘financial interest’. It states ‘A person has a financial interest in the outcome of the assessment if the assessment will or may affect the amount of money or property to which that person is or may become entitled out of the fund. Where an interest in the fund is itself held by a trustee for the benefit of some other person, that trustee will be treated as the person having such a financial interest unless it is not appropriate to do so. ‘Trustee’ includes a personal representative, receiver or any other person acting in a fiduciary capacity’.
The SCCO expect the professional Deputy to determine who such an interested party may be and for the Deputy to take a sensible, pragmatic approach. It may not be appropriate to serve every beneficiary of P’s estate, for example. It is recommended that any interested parties are highlighted for the SCCO’s attention when e-filing your bill of costs.
Sometimes the SCCO will indicate on the assessment that the bill of costs needs to be served on the interested parties, but even where they don’t state that, it is up to the Deputy or Claimant to decide if the bill should be served. There have been instances where a Final Costs Certificate has been obtained and an interested party has come forward asking why they were not served at the time, wishing to challenge the outcome of the assessment. If the SCCO decided that party should have been served, the Claimant may be liable for the costs of that additional process as a result of not following procedure.
The link to the procedure rules can be found at: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1
If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com
Who can sign a Bill or Statement of Costs?
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
The importance of being organised
As you are all aware, organisation rules the world!
This is a very important point when you are preparing your files to send to your Costs Draftsman. An untidy or incomplete file can be a nightmare for both the Client and also the Costs Draftsman in terms of completing your Bill of Costs. The assessment process can be slow, but organisation and complete files can help to prevent unnecessary delays.
Your checklist
A simple checklist assists both you and the Costs Draftsman when sending your file for costing.
We require:
- your file of papers;
- your time ledger;
- your Court Order and any other relevant Orders;
- a letter of instruction;
- details of disbursements; and
- details of fee earners who have worked on the matter.
If information or files notes and correspondence are missing from the file, and cannot be deciphered from the ledger, the file cannot be completed without further assistance from the fee earner.
What should you provide?
Clarion’s Costs Team pride themselves on the turnaround time and the quality of the work produced.
To enable us to do the best possible job, we need as much information as possible from you to paint a picture of the case for the Senior Courts Costs Office. This requires a complete file of papers with evidence for all work done. If we have all information and papers from you, we are able to prepare the bill of costs quicker for submission to the SCCO. It goes without saying that as Deputies, you are all extremely busy, but an extra ten minutes to ensure completeness of your file can save a lot of lost time and unbilled WIP.
It can also be a huge assistance to us if a brief synopsis of your case in your letter of instruction is provided. We will go through your file of papers page by page, but we will never know as much about your cases as you will. The Costs Draftsman can then use this as the basis for the narrative in your Bill of Costs. We will also have a better understanding of what sort of matter we are costing and the complexities throughout, which can be relayed throughout the Bill of Costs for the Costs Officer’s attention.
It is vital that travel disbursements and Counsel’s fees are included in the Bill of Costs. Counsel’s fees must be assessed, so ensure that you have an agreement in place with any Chambers about potential short fall fees from the outset.
Following the recent decision in PLK & Ors, it is essential that your charges do not breach the Indemnity Principle. If there are any retainer letters or fee agreements for your case, we need to know about them. The increased hourly rates can only be applied if your authority allows you to claim them. It’s vital that you are within your OPG105 estimate too, to prevent being penalised on assessment.
How we can help
Clarion Costs Team is on hand to guide you through the billing process and if you are unsure of anything, please contact us via telephone or email, and we will do our best to assist you.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at COPCosts@clarionsolicitors.com.
5 reductions in COP assessments that you need to know about!
At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor common reductions. Every case is completely different, but you do not need to simply accept the reductions made to your bill of costs and you can request a reassessment, if appropriate to do so. We recognise the hard work that COP practitioners put into their matters and are passionate about working with our clients to help them recover fair and reasonable costs. Based on our experience, we have identified 5 recent reductions which we think should be on your radar.
Document time reductions
It is common for time spent on documents to be reduced or struck out where the Costs Officer considers it to be excessive, but it may be necessary to challenge these reductions. If you can provide reasonable justification as to the time spent, the necessity of the task at hand and the grade of fee earner undertaking the task, then it can be beneficial to provide more information to the Costs Officer and request that the reduction is reconsidered. A good example of this is time relating to the OPG102 in exceptional cases, where the Protected Party’s liquid assets are high or their estate is particularly complex.
Contact with internal teams
It is not uncommon for the Deputy to require support from another area of expertise in a management period or application. Examples could include the Conveyancing Team in respect of property matters, or the Employment Team regarding the directly employed care staff. The contact with internal teams is commonly reduced as ‘inter-fee earner’, however it is often essential in progressing the matter. If an external team were to be instructed, the time would likely be much more costly, therefore the instruction of the internal team can often be in the Protected Party’s best interests. It can be beneficial to advise the Costs Officer of the situation and the necessity of the internal teams’ assistance, to allow them to reconsider reductions appropriately.
Lack of evidence
Whereby the Costs Officer strikes out time due to the ‘lack of evidence’ or ‘no file note’, this should be challenged by simply providing the relevant file notes. Evidence for all work done should be on file, but if something is missed, this can be provided retrospectively which allows the Costs Officer to reconsider the time they disallowed.
Excessive contact with the Protected Party/Family/Case Managers
A common reduction is excessive contact with the Protected Party, their family or the Case Manager. A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, or there might be issues with directly employed care team which would be vital for the Case Manager to deal with, communicating with the Deputy to resolve them properly, or a family member may act as the main point of contact. If there are reasons behind the high levels of contact, they should be set out to the Costs Officer to justify it and show that the time spent was proportionate to the matter. We regularly see blanket reductions to high levels of contact, which can often be resolved during reassessment in the right cases.
Travel Reductions
Reductions to travel time aren’t common, however they do still occur. Travel reductions should be challenged if they are not reasonable. The Protected Party can often live very far from the Deputy and if the meeting is reasonable, the mode of transport is appropriate and the time spent is justified, a reduction of this kind should not be accepted.
We are happy to advise any professional Deputy who is unhappy with the outcome of their assessment and continue to work with law firms nationally to help them recover fair and reasonable costs. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com