UPDATES – What is a good reason to depart from a budget??

Since Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792 and the ruling that a budget will only be departed from (up or down) if there is good reason to do so, there has existed the issue of what a good reason to depart from a budget upon detailed assessment is. Case law provides authority for what does and does not amount to a good reason, and there has now been time to reflect on this.

The matter of what constitutes a good reason is still subject to much questioning and debate, as there is no distinct definition of what amounts to ‘a good reason’.

The case of RNB v London Borough of Newham [2017] EWHC B15 (Costs), which followed that of Harrison and Deputy Master Campbell, decided that departing from the hourly rates was a good reason to depart from the budget. However, this decision faced criticism, in that the Judges’ role in the budgeting process is to set a total for each phase in the budget and is not to approve or fix the hourly rates.

Therefore, for all intents and purposes, it is irrelevant what the hourly rate is for those budgeted costs, at the time that the budget is set. A Judge may look at it like this: whether a party spends 15 hours at £200.00 per hour, or 20 hours at £150.00, for a total phase of £3,000.00 – the figure is still the same. The total phase is just that: a total amount which the Court believes is appropriate for the work required.

The issue of hourly rates – and a good reason to depart from a budget – was revisited in Bains v Royal Wolverhampton NHS Trust. This decision went against RNB, as it ruled that to reduce the hourly rates in line with reductions made to those of the incurred costs would be to second guess what the Judge was thinking at the point of costs management.

Nash v Ministry of Defence [2018] EWHC B4 (Costs), a high court decision following the decision of Bains, ruled that, if the change in hourly rate for incurred costs was a good reason to depart from the budgeted figures, it would bring about a case of double jeopardy. Thus, the only way to combat this, would be to undertake an assessment of the incurred costs at the costs case management hearing.

Jallow v Ministry of Defence [2018] EWHC B7 (Costs) highlighted matters that do not amount to a good reason to depart from the budget, and how the costs management order (CMO) can impact the detailed assessment. Master Rowley commented that the two factors brought in front of him, namely the settlement figure in comparison to the pleaded value, and the reduction in the hourly rates, do not amount to good reasons for departing from the budget.

The Master concluded that a reduction to rates for incurred costs do not amount to a good reason to depart. To amount to a good reason, something specific is needed to have happened. The change in the hourly rates did not amount to something specific and had it done so, it would have set a precedent for parties to argue good reason every time rates have been reduced, as it is in many cases.

A more recent decision of an appeal case, Barts Health NHS Trust v Salmon (unreported) (2019)delves further into the matter of good reason and provides authority on departing down from the budget where the phase has not yet been completed. HHJ Dight concluded that, where the phase has not been completed, and the receiving party has claimed less than the total figure for that phase, then this amounts to a good reason to depart from the budgeted figure, in order that the indemnity principle not be breached. Interestingly, HHJ Dight then went on to say that once good reason has been established, then the paying party need not put forward any further good reason when additionally challenging the level of the total figure claimed and attempting to reduce the phase.

This raises some significant questions about the importance of the assumptions of the budget, following approval of the figures at the costs case management conference. The only page required for filing is the front page of the approved budget. However, should it now be required to submit updated assumptions, to reflect what the figures are based on, should any part argue a good reason to depart in relation to whether a phase has been completed. I suspect, as further good reasons become apparent, the use of the assumptions to show what the phase total was based on will become a much more widely used tool, in proving good reasons to depart, where assumptions widely differ from the actual outcome, and could come to benefit both receiving and paying parties, For example, where there has been more work assumed than has actually been undertaken, regardless of a party is claiming the total of the phase, or where the total of the phase is much lower than budgeted, regardless of whether the number of witnesses was much lower than the number anticipated.

There remains uncertainty as to what does amount to a good reason. With some guidance, I suspect there will be many more cases to come; however, will reluctance be shown by Judges to make those decisions given the gravity of those rulings?

Advertisements

How to Keep Your Costs Officer Happy!

Our specialist ‘Court of Protection Costs Team’ work for over 30% of the Deputies, and for that reason we have extensive knowledge in this area. Costs Officers tend to have a core approach which they apply to detailed assessments, together with areas which fall outside this core approach which are dealt with on a bill by bill basis. However, if the Costs Officer can deal with this core area with ease, then their job can be dealt with more easily.

An easier job = a happy Costs Officer = the optimum result!

Here are my top tips on how to keep the Costs Officer happy:

  • Always claim the appropriate hourly rates. If you do wish to claim a higher rate then an exceptional reason will be required to do so.
  • Try not to claim Grade A rates throughout the entirety of a Bill of Costs. If you are a sole practitioner or you are unable to delegate, it could be suggested that the more straightforward tasks be claimed at a lower rate. This ensures that the time and rate claimed are proportionate and reasonable to the task in hand.
  • Keep the ‘documents’ section of the bill as concise as possible to keep the Costs Officers attention.
  • Only claim for the tasks that are recoverable. A Costs Officer could look at the Bill less favourably if every task possible has been claimed for. Examples of non-recoverable items are – photocopying, …………
  • Clarify that certain parties within the Bill of Costs are not internal parties such as Tax Advisors or Accountants. If this is not clear, the time may be disallowed for a belief that it is inter-fee earner and therefore not recoverable, Leighanne Radcliffe (2004 ).
  • Try not to claim for two fee earners at an attendance, unless there is a valid reason for doing so. The Costs Officers will generally only allow one portion of the time claimed, Garylee Grimsley – (1998)

If these top tips are applied I am confident that that you will achieve your optimum result.

If you have any questions or queries in relation this blog please contact Danielle Schofield (Danielle.schofield@clarionsolicitors.com and 0113 3363213) or the Clarion Costs Team on 0113 2460622.

Court of Protection Case Law Summary

This article focuses on the main case law which impacts upon the costs within the Court of Protection. It is apparent that Costs Officers frequently refer to one or more of these cases when conducting provisional assessments and therefore knowledge of the case law is beneficial:

Garylee Grimsley – December 1998

Two or More Fee Earners at One Attendance – Disallowed in accordance with R –v- Legal Aid Board Ex Parte Bruce (1991) which stated:

“Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… In so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”

Inter Fee Earner Communications – Master O’Hare directed that claims in respect of discussion between a solicitor, Deputy and his junior employees were disallowed under the SCCO Practice Direction No.2 of 1992 (Para 1.8). Memorandums passed between fee earners were also disallowed as they amounted to inter-office liaison which had not added anything to the value of the legal services provided.

Tina Jayne Cloughton – November 1999

Delegation – Master O’Hare stated that a Professional Deputy should delegate suitable tasks to colleagues on the basis that the delegation is reasonable and will save costs rather than increase them. However, Master O’Hare directed that the Deputy must be careful not to increase his/her claim for costs by duplicating work done by colleagues.

Jamie Walker – November 2002

Arranging Payments – Master O’Hare reduced/disallowed time for making payments/settling invoices as this was considered a non-fee earner task. Such time was defined as:

  • Checking that the invoice was incorrect;
  • Checking the file to ensure an invoice had not already been paid;
  • Checking that sufficient funds were in the account;
  • Preparing a cheque and getting it signed;
  • Preparing the appropriate letter;
  • Checking the receipt and filing it

Incoming Correspondence – Disallowed as the time spent on incoming correspondence was included within the time spent preparing the response. Master O’Hare applied the following provision for time spent perusing incoming correspondence:

“Routine letter out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each… The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters”

Leighanne Radcliffe – December 2004

Inter Fee Earner Communications – Costs Officer Sainthouse applied Master O’Hare’s decisions that had been made In the matter of Garylee Grimsley whereby communications between fee earners were disallowed as they had not added anything to the value of the legal services provided.

Enclosure Letters – 6 minute claims for letters enclosing invoices were reduced to 3 minutes for payment of routine invoices. Costs Officer Sainthouse referred to Master O’Hare’s decision which had been made In the matter of Jamie Walker in that the time spent checking the invoice, arranging payment and preparing the appropriate letter/cheque was non-fee earner work.

Michael Ashton – July 2006

Reduced Hourly Rates – Master O’Hare dictated that Court of Protection work was ‘less taxing’ than other areas of law such as litigation. It was therefore ruled that hourly rates for Court of Protection work should be less than the Guideline Hourly Rates set by the SCCO for litigation work.

Louise Smith & Others – October 2007

Guideline Hourly Rates – Master Haworth ruled that Court of Protection work should be allowed in accordance with the SCCO Guideline Hourly Rates. The bands within the SCCO Guideline Hourly Rates are defined as:

  • Solicitors with over 4 years post qualification experience, including at least 8 years litigation experience;
  • Solicitors and Legal Executives with over 4 years post qualification experience, including at least 4 years litigation experience;
  • Other Solicitors and Legal Executives and Fee Earners of equivalent experience;
  • Trainee Solicitors, Paralegals and Fee Earners of equivalent experience.
  • Provisions for the recovery of rates above the Guideline Hourly Rates were also made:

“An hourly rate in excess of the guideline figures may be appropriate for Grade A fee earners in complex litigation… including the value of the litigation, the level of complexity the urgency or importance of the matter… would justify a significantly higher rate…”

It was also directed that:

“Unqualified clerks who are fee earners of equivalent experience may be entitled to similar rates… Clerks without the equivalent experience will be treated as being in the bottom grade of fee earner… whether or not a fee earner has equivalent experience is ultimately a matter for the discretion of the Court”

Louise Smith & Others is the leading case in respect of Guideline Hourly Rates.

Yazid Yahiaoui – January 2014

Blended Hourly Rates – Master Haworth saw no reason to depart from his judgment stated In the matter of Louise Smith & Others however the application of “blended rates” may be suitable. Master Haworth directed:

“…where work is being carried out either as a team or by an individual that spans work that would normally be dealt with by a Grade B, C or D fee earner, a blended or enhanced rate may be appropriate…”

If you have any questions or queries in relation to this blog please contact Julianne Brown (julianne.brown@clarionsolicitors.com or 0113 336 3320) or the Clarion Costs Team on 0113 246 0622.