Tag: Clarion Costs Team

It’s a final Statutory Invoice…..but only if your retainer allows it

Helen ApplebyLeave a comment

Ivanishvili -v- Signature Litigation LLP (2023)

This case concerns the legitimacy of interim statute bills and potential difficulties in rendering the same. In the substantive action, the Claimant issued proceedings seeking Judgement that 79 invoices (totalling £12,781,354.66) rendered by his previous Solicitors  over a period of more than six years, were not statute bills and should therefore be subject to a Solicitor/Client Detailed Assessment.

It was the Claimant’s position that his retainer with the Defendant firm incorporated a Discounted Conditional Fee Agreement and therefore, the invoices produced only represented a portion of the potential fees that would become due to the firm for the work undertaken. Furthermore, the retainer indicated that a final bill would be rendered upon conclusion of the claim. Therefore, the invoices produced could never be considered as final statute invoices.

The Defendant submitted that the invoices rendered were complete and final bills. It was their submission that only the last bill, dated October 2022, could be open to assessment, but otherwise they had all been paid and therefore the Claimant had no right to challenge them.

Cost Master Leonard did not give a concluded view on whether it was possible to render an interim statute invoice under the terms of a CFA. Rather, he found it ambiguous as to whether the retainer allowed for statute interim bills at all. In this case, he found that none of the invoices could be considered as statutory bills ‘because any such agreement would have been inconsistent with the terms of the retainer under which they were rendered and paid’.

Furthermore, under the retainer the parties had entered into, Master Leonard confirmed “the invoices could be finalised, only when either the firm delivered a bill for any additional fees due (ie success fee), or, the firm accepted that nothing more was due and finalised its billing on that basis. The default position for a contract between a solicitor and the client who retains that solicitor is that it is an “entire contract”.

Therefore, the Solicitor is only entitled to render a statutory bill at the end of the retainer, the completion of a transaction or the conclusion of litigation. As these invoices had been produced throughout the lifetime of the litigation as opposed to the conclusion, Master Leonard allowed the Solicitor/Client Detailed Assessment.

Whilst of course, cash flow for any firm is paramount, this case highlights the importance of truly understanding the pre-existing funding arrangement in place, before attempting to render final statute invoices.

Helen Appleby is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors.

You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Costs of attending pre-inquest review can be recoverable

Bethany CollingsLeave a comment

The judgment of Costs Judge James Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) provides further insight into the recoverability of costs associated with a Coroner’s Inquest as part of the costs of a subsequent civil claim. Although it is usually accepted that such costs are recoverable in principle, it is not uncommon for paying parties to attempt to limit the extent of claims for costs. One area which is often targeted are costs in respect of pre-inquest review hearings, which can be deemed to be ‘housekeeping tasks’.

The claim related to a young woman who died whilst under the Defendant’s care. The deceased had a substantial history of mental health issues as well as Asperger’s Syndrome and a diagnosis of emotional unstable personality disorder. The deceased also had a history of self-harm and suicide attempts and had been admitted to various mental health units throughout her lifetime. The deceased passed away on 28 December 2016, having been found on her bedroom floor having ligatured with her clothing. The cause of death was an un-survivable hypoxic brain injury.

Following the deceased’s death there was a serious incident investigation which identified a number of concerns. Thereafter there was a further investigation and a future inquest. The deceased’s representatives subsequently brought claims against the Defendant for damages. The civil claims concluded before the inquest took place, however there were two pre-inquest reviews which addressed issues of expert evidence, disclosure, and witness evidence before the damages claim was settled in the sum of £65,000.

In the subsequent detailed assessment of costs, one of the issues between the parties was the extent to which the costs associated with the inquest were recoverable from the Defendant. In particular, the Defendant took issue with the costs of attending the pre-inquest review hearings, which amounted to a total of £14,770.67, including Counsel’s fees, Solicitors costs and disbursements.

The Defendant objected to all costs associated with the pre-inquest reviews largely on grounds that they denied that the costs incurred were of use in the civil claim. This was based on the submission that full admissions of liability had been made and the Defendant had apologised at the time of the deceased’s death. They also suggested that a pre-inquest review was largely ‘housekeeping’ and they relied on the decision in Amanda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v (1) Chief Constable of Warwickshire Police (2) Warwickshire County Council and (3) Warwickshire NHS Trust [14 November 2014], which is an example of a Costs Judge disallowing the costs of a pre-inquest review.

In rejecting the Defendant’s arguments, the Costs Judge confirmed the importance of finding out what caused the death in the first place was a significant factor. It was also held that the fact that the deceased’s representatives had gone on to secure a meaningful apology and a commitment to learn lessons from the death were as important as the financial value of the damages recovered.

As regards the Defendant’s suggestion that the costs were of no use in the civil claim, the Costs Judge found that the participation in the pre-inquest reviews shed light on the treatment received by the deceased, which assisted in considering the non-negligence aspects of the civil claim. In addition, it was found that representation at the pre-inquest reviews helped prevent the Coroner from being influenced by the Defendant’s representatives which may have prevented key documents and facts coming to light. The costs of attending the pre-inquest reviews were therefore allowed in principle.

Bethany Collings is a Paralegal in the Costs and Litigation Funding team and can be contacted at bethany.collings@clarionsolicitors.com or on 0777 951949.

Judicial Review issued in relation to October’s Fixed Costs reforms

Daniel MurrayLeave a comment

It has been confirmed that Judicial Review proceedings have been issued by Association of Personal Injury lawyers (APIL), against the Lord Chancellor, in relation to the extended fixed costs rules which are currently due to come into effect on 1 October. Our understanding is that a challenge has been launched in relation to four key grounds:

  • The failure to consult properly on the inclusion of some clinical negligence cases under the extended regime, and specifically when they will apply.
  • The lack of certainty regarding how additional costs incurred because of vulnerable parties is to be dealt with. Including, the fact that no uplift can be applied without an application at the end of a case.
  • The lack of certainty in relation to representation at inquests and how those costs are dealt with.
  • Concerns that the wording of the proposed new CPR 45.1 (3), and the apparent inability of parties to contract out of the extended regime.

All these issues are ones which attracted largely negative commentary in the build up to the implementation of the extended regime. In particular, the lack of clarity as to the timing as to when an admission of breach of duty and causation in a clinical negligence matter might limit a Claimant’s Solicitors to fixed costs. Certainty on all the above is welcomed prior to the implementation of any new rules. Most of the issues are ones which are currently under consultation by the MOJ, with responses to the consultation open until 8 September.

By agreement, the Judicial review proceedings are to be stayed until three weeks after the government responds to the MOJ consultation. Parliament is currently in recess until 4 September, and with just over 5 weeks until the new rules are implemented, there is a race against time to see whether the government pushes ahead with implementation, or perhaps wisely, takes the decision to postpone plans further until key issues are resolved.

For further information on the consultation, please contact Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our new dedicated fixed costs email addressatFRC@clarionsolicitors.com.

Failure to explain costs budget overspend prevents costs recovery from client

Robert PattersonLeave a comment

The recent case of JXC v NIS [2023] EWHC 1000 (SCCO) (21 April 2023) is an example of a solicitor who had successfully concluded a claim of the utmost severity, but went on to encounter difficulties in securing payment from their client of costs which could either not be claimed from the Defendant or were not recovered from the Defendant.

In this case the solicitor represented a 19-year-old Royal Marines Commando, who sustained catastrophic head injuries when he fell 20 feet from an assault course, which had no safety netting installed. The claim, naturally enough, took a long time to conclude; the CFA was entered into in August 2013 and the award of damages, which had a total capitalised value of £14,000,000, was not approved until March 2021. At the conclusion of the claim, the solicitor presented the Defendant with a bill of costs in the sum of £1,300,488.44 and went on to secure a negotiated settlement amounting to £1,050,000. Subsequently the solicitor sought payment of the shortfall, which had been limited to £212,974.69.

The Court was therefore principally concerned with the nature of information provided to the client’s litigation friend as to base costs recovery from the Defendant and the costs budget.

Although the solicitor had informed the litigation friend that not all of their costs would be recovered and had indicated on 6 occasions between 2017 and 2021 that there would be a shortfall (even going as far as to quantify the shortfall at £245,000 in January 2021), the solicitor had not advised the litigation friend on anything to do with the Court approved costs budget. The client’s budget was first set by the Court on 27 January 2015 and was updated twice more in July 2018 and again on 22 June 2020. The solicitor went on to incur costs in excess of the approved budget which were calculated at £204,759.17.

The solicitor conceded that she had not asked the litigation friend to approve any of the costs budgets, had not given any specific advice to the litigation friend in respect of any budget overspend and had not advised on any corrective action that could be taken. It was nevertheless argued on her behalf that the litigation friend was aware that there would be a shortfall and that the shortfall would be approximately £245,000, which was higher than the claimed shortfall in any event. In other words, the advice given was sufficient to enable the litigation friend to make informed decisions notwithstanding the lack of specific advice on the costs budget.

The Court did not agree. In any solicitor/own client assessment, the solicitor is afforded a degree of protection by the presumptions in CPR rule 46.9(3)(a) and (b) that costs are presumed to be reasonably incurred and reasonable in amount if they were expressly or impliedly approved by the client. The Court found that the client had not been aware of the limits imposed by the costs management order, they could not have expressly or impliedly approved the expenditure. Accordingly, the solicitor was not entitled to rely on the presumptions in CPR rule 46.9(3)(a) and (b). Furthermore, the Court concluded that a budget overspend was not of itself unusual in nature for the purposes of CPR rule 46.9(3)(c), however the scale of the overspend was found to be unusual in amount.

As a consequence of the above, the budget overspend was considered to be unreasonably incurred and unreasonable in amount with the result that the solicitor could not recover any shortfall from the client because the budget overspend exceeded the total claimed shortfall.

In this case the Court was carrying out a detailed assessment under CPR rule 46.4(2) of costs payable to a protected party’s solicitor out of money belonging to the protected party. However, as such assessments involve consideration of CPR rules 46.9(3) and (4), the issues considered in this case should be of interest to any party involved in an assessment under the Solicitors Act 1974. The case also demonstrates the importance of giving appropriate advice at all stages of the costs management process.

For further information, please contact Robert Patterson, who is a Senior Associate in Clarion’s Costs and Litigation Funding Department and can be contacted at robert.patterson@clarionsolicitors.com.

Attendances on Case Manager, MDT and Deputy should materially progress matter to be included in Costs Budget

Anna LockyerLeave a comment

In the case of Hadley v Przybylo [2023] EWHC 1392 (KB) it was ruled that fee earner time dealing with Case Managers, Multi-Disciplinary Teams and Court of Protection Deputies should not be included in the main costs budget phases if the work does not materially progress the case.

At the budget discussion stage of this serious personal injury case, several costs management issues were narrowed, but there was no reconciliation between the parties as to whether case management and MDT meetings, and attendances on deputies for health, welfare and finance could be included in the budget.

The Claimant argued it was the practice of the Masters to include these costs and that:

“attendance by a fee earner at these case management meetings etc are reasonably necessary to progress the litigation because they assist in maintaining the Schedule of Loss as the claim goes along. It is [] something of a ‘live feed’ from the Claimant’s care and treatment at medical-professional level and the deputies, to the lawyers. What is claimed in the budget is about 1 hour each week with the Case Manager and 1 hour each week with each of the two Deputies, totalling 3 hours a week in the Issues and Statements of Case phase, as part of work on drafting and updating the Schedule of Loss on an ongoing basis.”

The Defendant argued the contrary submitting that:

“as a matter of principle such attendance charges ought to be ruled as inadmissible in a budget. They are not progressive of litigation any more than, say, having lawyers attend every medical treatment appointment would be. They are not properly included. In addition, whether or not in principle ever allowable in a budget, they do not fall within the guidance as to the categories of matter to be included in the Issues and Statements of Case phase in any event. Furthermore, their experience in contrast with that of the Claimants is that such charges are often rejected for inclusion in budgets.”

Master McCloud acknowledged this to be a grey area and appeared to make an example, albeit rife for challenge, in her decision to side with the Defendants.

Reference was made to Practice Direction 3D 10. (b) and the fact case manager attendance costs in this case formed a part of the maintenance of the Schedule of Loss. It was found that these specific types of costs did not materially progress the case, and therefore not budgetable or a recoverable head of costs in principle.

“In my judgment having a fee earner attending rehabilitation case management meetings is not progressive in the above sense and does not fall within the notion of ‘costs’. Likewise a fee earner attending on deputies so as to seek input into the ongoing drafting of the case in the form of the Schedule, when deputies do not properly play a part in such work, is not progressive.”

Master McCloud did indicate that these costs may be recoverable in damages but failed to elaborate, apart from to say it is for the Claimant to consider whether at trial those costs may be claimable as damages. 

The argument that attending on case managers and deputies was integral to producing the Schedule of Loss was described as “weak” by the Master.

The Master went on to clarify that information about case management or incurred expenses could be achieved by the occasional letter to the case manager or deputy or from obtaining documents for later disclosure. Furthermore, in their witness statements and that these costs could be included in the budget as they are “qualitatively” different things from attending meetings for input into a schedule of loss. It was decided that if they were allowable in the budget, then they are best placed in ‘contingency phases’.

Although this decision hinders budgeting time spent in case manager, MDT and deputy  meetings, Master McCloud allowed permission to appeal and invited the Rules Committee to provide guidance in the very same judgment. It seems then that the intention of this ruling is to ‘flush out’ some clarity. 

Anna Lockyer is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Solicitors’ Duty of Care to their Clients (Forster v Reynolds Porter Chamberlain LLP)

Joanne ChaseLeave a comment

Introduction

Mr Justice Fancourt, Vice-Chancellor of the County Palatine of Lancaster, in the Business and Property Court in Leeds held that Reynolds Porter Chamberlain LLP (RPC) owed a duty of care to its client, Deborah Forster (‘the Claimant’). Specifically it had a duty to keep her informed of the ‘staggeringly high level of costs’ that were accruing throughout the retainer, with the commensurate risk of a shortfall in costs recovery that would erode any judgment she obtained.

By the time the case settled, the costs had reached £5m. The Claimant had agreed to pay these costs under the terms of a conditional fee agreement (CFA), however, she argued that RPC had been negligent in failing to keep her informed of the costs of litigation, and in failing to advise her on the risks of incurring high costs.

This case is significant for practitioners in the field of commercial litigation, as it clarifies the duties that solicitors owe to their clients under a CFA. The court’s decision in this case makes it clear that solicitors must keep their clients informed of the costs of litigation, and that they must advise their clients on the risks of incurring high costs, even if the client has agreed to pay those costs on a ‘no win, no fee’ basis.

As a separate point, the case highlights the importance of choosing the right expert in commercial litigation. The court’s decision in this case suggests that solicitors should advise their clients to use experts who are likely to be cost-effective, in addition to providing reliable and accurate evidence.

What are the practical implications?

The case has a number of practical implications for practitioners in the field of commercial litigation. First, it clarifies the duties that solicitors owe to their clients. Under a CFA, a solicitor agrees to represent a client on a ‘no win, no fee’ basis. This means that the client does not have to pay their solicitor’s fees unless the client wins the case. However, the client is still liable for the other party’s costs if they lose the case.

The court’s decision makes it clear that solicitors must keep their clients informed of the costs of litigation. The court also held that solicitors must advise their clients on the risks of incurring high costs, including the risk that the client may be unable to recover their costs from the other party if they lose the case.

Second, the case highlights the importance of choosing the right experts in commercial litigation. The court’s decision suggests that solicitors should advise their clients to use experts who are likely to be cost-effective, and who are likely to provide reliable and accurate evidence. Practitioners will need to be more mindful of the risks of incurring high costs, and they will need to advise their clients on how to mitigate those risks.

Overall, the decision is a reminder to all practitioners of the importance of managing costs in litigation and keeping their clients informed of the costs of litigation and risks of incurring high costs.

What was the background?

The Claimant, Deborah Forster, was a director of a company called Stayput Solutions Ltd. In 2008, two other directors, Kate Bleasdale and John Cariss (the Opponents) acquired overall majority control of the company and then caused it to sack the Claimant. The Claimant brought a claim against the Opponents for fraudulent misrepresentation, and for relief under section 994 of the Companies Act 2006.  

In October 2011 the parties agreed, by way of Tomlin Order, that the Claimant would receive £350,000 compensation and 80% of her costs of the claim and the petition. However, only £50,000 of this was paid by the Opponents, who were eventually made bankrupt on the Claimant’s petition in 2015. Nothing more was recovered from them.

The Claimant’s subsequent claim for damages from RPC was essentially for loss of the opportunity to enforce the Tomlin Order promptly and thereby recover more of the agreed sums. The Tomlin order should have been converted to a judgment debt and then enforced against the Opponents’ assets in late 2011 and 2012. The issue of the solicitor’s breach of duty also then arose as part of this claim.

The main issues before the court were therefore:

  • whether the Claimant suffered loss as a result of RPC’s negligence
  • whether RPC owed a duty of care to the Claimant to keep her informed of the costs of litigation
  • whether RPC was negligent in failing to advise the Claimant on the risks of incurring high costs
  • if so, what damages should the Claimant be awarded?

What did the court decide?

The court held that RPC owed a duty of care to the Claimant to keep her informed of the costs of litigation. The court also held that RPC was negligent in failing to advise the Claimant on the risks of incurring high costs. The fact that the claim was funded under a CFA did not mean costs were not a matter for the client. There remained a risk to the Claimant of being liable to pay the shortfall between chargeable fees and disbursements and the costs recovered from the Opponents.

Whilst that was a breach of duty, it had caused no loss. However, the Claimant had suffered a loss of chance regarding enforcement of the settlement due to a conflict between the solicitors and funders who had made a loan to the Claimant. Judgment was entered for £192,500. 

Analysis

The court’s decision in Forster v RPC is significant for solicitors, as it clarifies their duties to their clients when acting under a CFA:

  • solicitors have a duty to keep their clients properly informed of the costs of litigation
  • this duty is not limited to cases where the client is paying the costs of litigation themselves
  • solicitors must keep their clients informed of the costs of litigation, even if the client is being funded by a third party
  • solicitors must take reasonable steps to ensure that their clients understand the costs of litigation
  • solicitors must warn their clients of the potential for significant costs in litigation
  • solicitors must take steps to mitigate the risk of their clients incurring significant costs

The court’s decision is therefore likely to have implications for the way that CFAs are drafted and used. Solicitors will need to be more mindful of the risks of incurring high costs, and they will need to advise their clients on how to mitigate those risks. Solicitors will also need to be more transparent about the costs of litigation, and they will need to ensure that their clients are fully aware of the risks before they agree to a CFA.

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

If you have any queries, please contact us for a more in depth discussion.

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

Guideline Hourly Rates are the starting point not the finishing point

Robert PattersonLeave a comment

Arguments concerning solicitors hourly rates have always been a central issue in the assessment of costs, regardless of whether there is a detailed assessment or a summary assessment. Those arguments can be particularly important in cases where the rates claimed exceed the guideline hourly rates. Indeed, those who represent paying parties will deploy numerous arguments to achieve reductions, but one argument that is becoming increasingly common is the suggestion that an hourly rate in excess of guidelines should not be awarded unless a ‘clear and compelling justification’ has been given.

This particular line of argument derives from the case of Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 466. In that case the court was faced with a summary assessment involving hourly rates ranging from £801.40 to £1,131.75 for a Grade A and £443.27 to £704 per hour for a Grade C. The justification provided for those rates was that it is almost always the case the rates will exceed guidelines in competition litigation. Rates in excess of guidelines were not allowed and Males, LJ that:

“[…] If a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided. It is not enough to say that the case is a commercial case, or a competition case, or that it has an international element, unless there is something about these factors in the case in question which justifies exceeding the guideline rate.”

Males LJ made a similar finding in Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1061 when faced with rates well in excess of the guidelines.

Although the above decisions are frequently relied on, the point made by Males LJ may not be applicable in all cases. This is because in both Samsung and Athena, the court was dealing with a summary assessment rather than a detailed assessment and the two types of assessment are conceptually different. That difference was recently explained Master Rowley in Various Claimants v News Group Newspapers Ltd [2023] EWHC 827 (SCCO):

“70. I also accept the argument that the GHR may be a useful starting point in a detailed assessment as well as in a summary assessment. I do not, however, consider that the guidance given by Males LJ regarding the need for a “clear and compelling justification” for exceeding the GHR extends with any great force to this particular situation.

71. The GHR are provided predominantly to assist judges who do not specialise in costs cases to deal with a summary assessment of costs when faced with the successful party’s summary assessment schedule and competing arguments from the advocates.

72. The relevance to the GHR being a starting point in detailed assessments is no more than a reflection of the scarcity of any other starting point. Expense of time calculations or other potential starting points, as is demonstrated here, are invariably absent. But a starting point by its very name does not suggest it is the finishing point and that is particularly so where the court has the opportunity for the parties to address it in detail in respect of the CPR 44.4 factors.”

The Master went on to allow hourly rates in excess of guidelines. Accordingly, the decision in Samsung does not represent an additional test for receiving parties to overcome and detailed submissions in respect of the eight pillars of wisdom in CPR rule 44.4 are likely to be more effective in securing hourly rates in excess of guidelines.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding Team, and can be contacted at robert.patterson@clarionsolicitors.com.

10 years on from LASPO: Where we were, where we are now and where we are going.

Ellena HunterLeave a comment

As of last month, it has been 10 years since the implementation of LASPO; which implemented several of Lord Justice Jackson’s recommendations from his 2010 final report.

Listen to our podcast below in which Andrew McAulay and Ellena Hunter discuss how the implementation of LASPO and Lord Justice Jackson’s other recommendations have changed the world of costs, whether the same has achieved Lord Justice Jackson’s aim to control costs and promote access to justice and what the future of civil litigation may look like with the expansion of fixed recoverable costs.

Click here to tune into Anna Lockyer and Daniel Murray discussing 10 years of costs budgeting and what the future of costs budgeting may look like.

Click here to book your place on our Fixed Costs Masterclass Seminar on 6 September 2023.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Estimated time or pure imagination?

Helen ApplebyLeave a comment

In Ikin -v- Shawbrook Bank Limited (2023) the judgment of Senior Costs Judge Gordon Saker looks at the issues surrounding estimated time and contains many points for litigators to take on board. Remember, the responsibility lies not just with the person preparing the Bill but with the Solicitor certifying the accuracy of the Bill.

Brief background

This case involved several Claimants, who brought claims of misrepresentation by finance companies regarding the installation of solar panel systems. 9 Claimants were represented by the same Solicitor. One claim for costs was assessed (at nil) by Regional Costs Judge Baldwin, “The Kinder Claim”. The remaining 8 claims were transferred to the SCCO, to assess counsel’s fees, the expert’s fees and profit costs.

In 2 of the bills (Ikin and Walsh), there were identical generic time entries claimed (18 in total). They were identical in both wording and time claimed.

Part 18 Requests were served, requesting clarification as to whether any time within the Bills was estimated. The response was bland and the Claimants were asked to provide a schedule of estimated time – this was never produced.

On Assessment

The first Bill to be assessed, Scott, was found to be riddled with issues. No time recording ledger was provided and it was evident that no time had been recorded within the substantive action. In truth, almost all the profit costs claimed had been estimated by the Costs Draftsman, some of which were not supported by the file of papers.

The Judge requested an explanation from the Claimants’ Solicitor. A Witness Statement from the conducting Solicitor confirmed she “had no experience of dealing with costs in this type of claim and so had instructed KE Costs (“KEC”), a firm of costs lawyers, “who indicated they had experience of dealing with similar costs arising out of solar claims in the North East”. Miss Wall said that she had assumed “that the descriptions given [of the work recorded in the bill] were fair representations of the work that had been done”. When checking the bill before signing it, she made sure that all the disbursements had been included and “that each stage of the case has been accurately identified”. However she did “not sit there and look at every single line individually and check the accuracy of every single line, because that just seems disproportionate”. She had relied on the expertise of the people she was instructing.

Amended Bills were lodged with the Court where by the descriptions to the time had been updated, however, the sums and time claimed remained unchanged. The amended Bill in Ikin was claimed at £29,774.90 and assessed at £9,250.00.

Ruling and Conduct point

The judge considered the issues relating to the Claimants’ Solicitor’s conduct.  In particular the importance of the Solicitor’s signature on a bill of costs. In this case, there was a clear misconduct point, the Judge found the bills were not accurate and claimed costs the Claimants would not have been liable to pay to Parkerwall (their instructed Solicitor). The Judge imposed two sanctions. The assessed costs were reduced by 60% and the Claimant’s Solicitor was ordered to pay 75% of the Defendant’s costs of the assessment on the Indemnity Basis.

Civil Procedure Rules

“This is an appropriate case in which to disallow costs under r.44.11(2)(a). The Claimants’ legal representatives have claimed costs which their clients were not entitled and have attempted to mislead the Court. In Gempride Ltd -v- Bamrah (2018), the Court of Appeal substituted an order that one half of the profit costs otherwise payable under Part 1 of the Claimant’s bill should be disallowed. That followed findings that the Claimant Solicitor had certified a bill which claimed an hourly rate in excess of the rate that she was obliged to pay and had wrongly stated in her replies that BTE insurance was not available to her. There was no finding of dishonesty.

It seems to me that the present cases are comparable. Eight bills have either been reduced significantly or have been agreed in significantly reduced amounts as a result of the misleading entries and the overestimation of time. As the parties have agreed global figures for profit costs and disbursements in the six unassessed cases, rather than disallow one half of the profit costs I would disallow a smaller proportion of the total figures.”

Costs follow the event

The Judge’s attention then turned to the costs of the detailed assessment. “Clearly this is a case where the court should make a different order to the usual order that the paying party pays the costs of the receiving party (CPR 47.20(1)). The conduct of the receiving parties’ solicitors reasonably required investigation. That led to a significant lengthening of the detailed assessment hearings. But for that investigation, the hearings might have been avoided completely. The conduct has been found to be wanting, and the bills have been reduced substantially.

Without an order under r.44.11(2)(b), the appropriate order under r.47.20 would have been that the Claimants should pay at least a proportion of the Defendants’ costs of the detailed assessment proceedings. As between the Claimants and their solicitors, the latter should bear those costs.

Some time was spent investigating the fees of counsel and the experts, which, in the event, did not lead to significant reductions. Whatever apparent irregularities there were in billing, the work had been done and the Claimants were entitled to recover the costs of that work. The Claimants should be entitled to the costs of those issues, but they were a relatively small part of the whole. The appropriate order under r.47.20 would have been that the Claimants should pay 75 per cent of the Defendants’ costs.

The fault, however lies, at the door of the Claimants’ Solicitors, rather than the Claimants, and so the appropriate order is that the Claimants’ Solicitor should pay those costs under r.44.11(2)(b). On any view the conduct of the Claimants’ Solicitor has taken these cases “out of the norm” and it is appropriate that the costs should be assessed on the indemnity basis.”

Summary

This brings home the importance of accurate time recording and certification by Solicitors. It remains the Solicitors responsibility to ensure that the certificate of accuracy guarantees the accuracy of the costs claimed.

Helen Appleby is an Associate in Clarion’s Costs and Litigation Funding Team. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

What you need to know about reductions to COP assessments

Lydia MarshallLeave a comment

At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor reductions upon assessment. Every case is different, but you do not need to accept the reductions made to your bill of costs if these are excessive or unreasonable alternatively, 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 reductions which we think should be on your radar.

Reductions to the Document Schedule

It is common for time spent preparing documents to be reduced or disallowed 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. Reductions which we have seen take a rising in recent assessments include disallowing time spent reviewing invoices and incoming correspondence, time spent conducting file reviews and time spent reconciling bank statements therefore, this is something you may see largely when receiving your assessment back from the SCCO.

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 communication’, however this contact 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’, ‘no file note’ or simply that the entry is ‘vague’. This should be challenged by providing the relevant file notes to allow the Costs Officer to decide whether the time was reasonable in context of the work completed. 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.

Reductions to Contact with the Protected Party/Family/Friends

A common reduction is excessive contact with the Protected Party, their family or their friends where a general reduction under the Trudy Samler decision may be applied.  A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, a family member may act as the main point of contact, or if there is ongoing Litigation, a family member/friend may be acting as Litigation Friend. 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.

Two Fee Earners in Attendance

It is not uncommon for two fee earners to attend a meeting however, it is unlikely that the Costs Officer will allow time for both fee earners unless under exceptional circumstances. There are some circumstances where we would deem the time claimed for both fee earners to be reasonable for example, if the other party were violent, two fee earners may be required for safety reasons, if the other party had made false allegations against the Deputy, it may be essential for a second fee earner to attend or if the party spoke a different language, it may be necessary for a bilingual fee earner to attend the meeting in order to translate. In the right case, with the provision of evidence to support the necessity of both fee earners in attendance, this reduction could be challenged.

Blended Hourly Rates

Where a higher grade fee earner has undertaken a large portion of work within the bill, a blended hourly rate may be applied to allow for sufficient delegation. There are many complex matters involved with managing the affairs of a Protected Party. Some examples of particularly complex matters required during a management period may be the sale and/or purchase of a property, investigation into misconduct of a previous attorney or high tensions with the involvement of the Protected Party’s family. Under complex matters, it may be necessary to utilise the expertise of a higher grade fee to limit the overall costs therefore, it could be beneficial to provide evidence as to the complexities at hand to allow the Costs Officer to reconsider the expertise which was required.

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 Lydia for more information at lydia.marshall@clarionsolicitors.com