Tag: costs lawyer leeds

A Local Authority v PG & Ors [2023] EWCOP 9

hawamayetLeave a comment

 

This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

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

Circumventing QOCS via a non-party cost order

Joanne ChaseLeave a comment

Introduction

The case of PME v The Scout Association and Bolt Burdon Kemp LLP  [2023] EWHC 158 (SCCO) dealt with issues related to enforcing adverse costs through a non-party costs order (NPCO) against a claimant’s solicitors.

As it stands, the application of QOCS usually prevents defendants from enforcing their entitlement to costs against a claimant if the matter settles before trial.

That was the position in this case, as without the permission of the court, the Defendant had no means of recovering from the Claimant the costs which the Claimant was ordered to pay. The Defendant confirmed that it had no intention of attempting enforcement against the Claimant and instead an application was made by the Defendant to seek to enforce their costs orders against the Claimant’s solicitor.

The Law

The operation of the QOCS rules, as clarified by Cartwright v Venduct Engineering Ltd  [2018] EWCA Civ 1654 and Ho v Adelekun [2021] UKSC 43 (On appeal from: [2020] EWCA Civ 517) confers an indirect benefit upon any solicitor acting under a “CFA lite” or capped CFA arrangement, in that they can pursue the costs of the claim at reduced financial risk because defendants often cannot enforce their entitlement to costs against a claimant.

Before QOCS they would have borne the cost of any adverse costs orders themselves rather than passing them on to their client. Now, absent an NPCO, they may risk only their own costs and expenses. That, again, is just a consequence of the way the QOCS regime works.

Section 51 of the Senior Courts Act 1981, empowers courts to make costs orders against parties other than those who have brought or defended litigation. There must be good reason to do so. In this case, it was the applicant’s position that BBK were more than a solicitor simply acting as a solicitor as permitted by the Courts and Legal Services Act 1990.  

The Defendant asserted that only BBK, and not the Claimant, had had any financial interest in the outcome of the proceedings, based upon the terms of the retainer agreement between the Claimant and BBK.

The Claimant argued that it was no part of (and was never suggested in) the Jackson reforms, or the policy behind the introduction of QOCS, that one of the effects of QOCS should be to shift, in whole or part, the liability for costs of any part of personal injury proceedings from Claimants to their solicitors. Rather, the intention was to remove that liability (in most circumstances) in return for defendants being relieved of the obligation to pay ATE premiums and to enhance access to justice.

It was therefore contended that the Defendant’s application was an attempt to circumvent what it perceived to be the unsatisfactory operation of the QOCS rules as drafted; hence the attempt to reinterpret CPR 44.16 as changing the basis upon which an NPCO can be made.

Judgment

Costs Judge Leonard, applying his substantial experience of these types of cases, concluded that:

“… if an NPCO could be justified whenever a costs order is made against the client of a solicitor pursuing costs under a CFA lite or capped CFA, merely because the client has no significant stake in the recovery of costs, then NPCOs would not be exceptional. They would become routine.”

He was not, therefore, satisfied that it would be just or consistent with established authority to make an NPCO against BBK. The application was therefore dismissed.

Analysis

This is another test case in relation to QOCS that was decided against the defendant. However, for most cases going forward this judgment will have no effect. From 6 April the Civil Procedure Rules will be changed significantly to permit enforcement in most circumstances against claimants.  

I would expect further test cases in relation to the application of these new rules going forward.

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

Preparing for Fixed Costs reforms: Part 2

Daniel MurrayLeave a comment

In the second part of Clarion’s mini-series aimed at helping litigators prepare for the upcoming fixed costs reforms, we look at some interesting developments since the first part of the mini-series was published in November 2022.

Delay to the implementation of the extension to fixed costs

The biggest development is the announcement by the Ministry of Justice  that the implementation of the new fixed costs regime has been delayed by 6 months until October 2023.

Lord Bellamy announced on 18 November 2022 at the Civil Justice Council’s National Forum on Improving Access to Justice: “Extending FRCs requires an extremely complex set of reforms…”

“I know it hasn’t been an easy task. I know that these reforms have particular implications for housing cases, and I am grateful for the constructive input of housing providers which we continue to consider. 

“Progress has been made, and we hope the rules will be approved in the near future. But we’re also very conscious of how important it is to get this right.  

“That’s why I can today confirm that we’re giving these reforms a little more time… and will implement the extension of FRCs in October 2023, rather than next April as originally planned. We think this will give the sector more time to adjust to the new regime.”

It had previously been announced by Lord Justice Birss (Chairman of the CPRC)  that it was the intention of the committee to have a draft copy of the rules out to the profession  before they were approved. However, difficulties were identified in the minutes of the  committee’s October meeting regarding the drafting of the new rules, which indicated that it was not going to be possible to have the rules drawn in time.

The minutes from the December 2022 CPRC meeting, indicate that there is still an intention to provide the rules to the legal profession in draft form prior to their approval and it may well be the case that there is a copy for us to comment on in the next instalment. 

Further delays to the implementation of fixed costs in housing disrepair cases

Housing disrepair cases were set to become a new area of law covered by the extension. The MOJ announced earlier this month that the implementation of fixed costs in these cases will be subject to a further two-year delay, in addition to the October 2023 extension referenced above.

Resultantly, the earliest these reforms will be in place is October 2025, which takes us beyond the timeline for the next general election and brings into doubt whether the next government  will still have an appetite  to implement the proposals. 

Whilst this is good news for tenants and their Solicitors, the news will ultimately come as a blow to landlords faced with claims in which the legal costs often far exceed the costs of repairs.

Recovery of agency fees under the fixed costs regime

An interesting decision at County Court Level from District Judge Phillips, a Regional Costs Judge, was released in January 2023, which in our opinion has ramifications not only for the current fixed costs regime , but also the extended regime which will come into effect in October 2023. We are grateful to John Meehan of Kenworthy’s chambers for sharing a copy of the judgment with us.

District Judge Phillips, sitting in the County Court at Cardiff, confirmed in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January 2023), that, as things stand, agency fees are recoverable.

The case arose from a claim for personal injury in a low value RTA. At the costs hearing on 5 January 2023, the Judge dealt with several issues but the key issue in dispute was whether or not medical agency fees  were recoverable in addition to expert fees and any fees incurred obtaining medical records pursuant to CPR 45.19.

The Claimant’s Solicitors had obtained expert evidence via a medical agency and the invoices produced in support did not include a breakdown of the agency fees which were incurred in procuring that evidence. The Defendant argued that the agency fees were not recoverable, and it was only the expert’s fee itself that was recoverable. The Defendants argued that any medical agency cost were subsumed within the fixed costs that were recoverable by the Solicitors.

The Judge distinguished this case from the decision in Aldred v Cham (2019) EWCA Civ 1780, where it was held that Counsel’s advice fees in portal fixed costs cases were subsumed within Solicitor’s fixed costs awards.

The Judge held that the cost of obtaining a medical report, did include the fees of the agency. At paragraph 56 the judge stated: “had the drafters of the Rule and the Rule Committee wanted to limit the fees recoverable to those only paid to the doctor, they could have quite easily made this clear in the Rule, they chose not to do so.”

The Judge also went on to confirm that if he was wrong in determining that the fees were recoverable as a disbursement, then the Court was still able to allow a reasonable sum for medical report fees, taking into account the guidance in CPR 44.3 and CPR 44.4.

Further important comments were made by District Judge Phillips, who indicated that it would be helpful if breakdowns were provided on invoices of the time spent by experts in preparing reports, as well as a breakdown of agency fees.

This latter guidance, in our opinion, could be significant ahead of the extension of the fixed costs regime. As the regime expands to cover cases of greater value, the level of expert fees sought under the fixed costs regime will increase, as will  the number of fixed costs disbursement disputes. This is on the basis that a lot of the cases which will be captured by the regime currently fall under the provisional assessment procedure, in which disbursement disputes are common.

Assuming that no provisions are made within the new rules which preclude the recovery of agency fees, ahead of the extension it is advisable to engage in discussions with agencies to establish whether invoices can be produced which provide a clear breakdown of agency and expert fees, to assist the Court with disputes.

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

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Laura SugarmanLeave a comment

From 1 November 2022 the COP E-Bill came into force. This will look slightly different to the Bills that COP practitioners are used to and will include some additional information including various categories and a separate part for the inclusion of P’s assets. We recently participated in a successful pilot scheme and will be submitting all Bills from 1 November 2022 in this new format.

Below are some common queries about the E-Bill and how to resolve these.

How does the Deputy or person authorised by the firm to sign on behalf of the Deputy certify the Bill of Costs?

The Deputy or authorised person is still required to certify the Bill as before. However, on the new E-Bill format the legal representative’s name can be typed or printed into the ‘Certification’ tab. Please be aware that the ‘Post Assessment Certificates’ section is only to be certified once you are requesting the Final Costs Certificate following assessment.

Where will information relating to any interim payments taken be entered?

Similarly to the PDF Bills, the E-Bill requires you to disclose any interim payments taken on account of costs for the period. This information should be entered on the ‘Certification’ tab in the first box.

How will the new E-Bill be E-filed using the SCCO portal?

The process for E-filing the Bill of Costs remains very much the same. You are still required to submit the certified Bill, Order, certified N258B and disbursement evidence as before, but use the new options on the E-filing service beginning ‘COP E-Bill’. If the Bill and N258B are not certified by an authorised person, then the submission will be rejected by the SCCO.

What will happen to the E-Bill on assessment?

Once the E-Bill is received and approved by the SCCO, it will be allocated to a Costs Officer who will review and assess in the usual way. The Costs Officer is able to make changes to the Bill where appropriate and the E-Bill will recalculate this automatically. The Costs Officer will use a series of codes and mark these on the E-Bill so that you can determine the reasons given for the reductions.

How will the E-Bill be returned following assessment?

The E-Bill now includes a contact email address section on the front sheet, which should be completed when drafting the Bill. Following assessment, the E-Bill will be sent via email to the address provided.

How should the E-Bill be served on interested parties where required?

If you are required to serve the Bill on interested parties then this should be provided to them as a PDF version of the E-Bill. Please request this from your Costs Draftsperson who would be more than willing to assist.

How can I ensure my E-Bill is compliant with new the new requirements?

There are some new requirements when using the E-Bill format that are likely to cause some minor issues if they are missed. Below are some ways in which you can assist your Costs Draftsperson in ensuring the E-Bill is ready to be submitted to the SCCO.

SCCO reference – there is a section on the front sheet that relates to the unique SCCO reference for each matter. This can be inputted prior to submission to the SCCO to help avoid any rejections based on the matter already existing. Please provide the SCCO reference to your Costs Draftsperson if known.

OPG105 estimated costs – there is an increased emphasis on providing the OPG105 estimated costs for the period when using the E-Bill. Please provide the OPG105 costs estimate to your Costs Draftsperson so that this can be included in the Bill.

P’s assets – the E-Bill now includes a specific section relating to P’s assets so that the Costs Officer can consider these. Please provide this information to your Costs Draftsperson and they will include it in the Bill accordingly.

Fee earner rates – please provide a breakdown of the fee earners who have worked on the matter and their date of professional qualification so that these can be included in the Bill.

Amendments – if you require any amendments to the E-Bill please consult your Costs Draftsperson. The E-Bill uses complex algorithms to calculate the totals within the Bill and any changes made could affect these and corrupt the Bill. We therefore recommend that you ask your Costs Draftsperson to make any amendments you require, rather than attempting this yourself, as it could cause issues with the E-Bill later down the line.

The introduction of the COP E-Bill will revolutionise the COP sector and should have a positive impact on assessment times and also result in less administration time following assessment, as the Bill is automatically recalculated in this format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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

Absence of a Signature on a Solicitor/Client Statute Bill is not Always Fatal

Joanne ChaseLeave a comment

In Sweeney v Wise Solicitors Ltd [2022] EWHC 2314 (SCCO) Costs Judge Rowley dismissed a claimant’s application for an assessment of costs against his former solicitor.

Background

The claimant instructed the defendant firm of solicitors in a personal injury action.  In that action he received £3,000 by way of interim payment.  This was sent to him, together with a note that any deductions would be made at the end of the case. 

At settlement on 26 July 2021, the claimant then received a further £10,000.  The defendant deducted 25% of the total damages by way of fees (that is 25% of £13,000). The claimant took umbrage, stating that he expected the deduction to be 25% of the £10,000.

In response the defendant firm provided invoices breaking down the fees and the deduction. The claimant told the solicitors that if the deduction was not discounted then he would bring an action to recover the whole of the 25%. The defendant declined and the claimant was directed to consider the agreement that the claimant had signed up to at the commencement of the claim.

The claimant then signed a consent form allowing the defendant to pay to him the settlement damages, less the 25% deduction on 100% of the damages.

The claimant contacted a third party firm to bring a claim against his former solicitor who then issued an application under s70 of the Solicitors Act 1974 seeking an assessment of the costs. However, they did not bring the claim until more than 30 days had elapsed since the defendant had provided the invoices, in breach of the time limit provided for by the Act.

The defendant solicitors sought to strike out the action on two, different grounds.

First ground

It was argued that the invoices could not be assessed as bills because they had not been signed and they had been provided by email.

The judge found that final statute bills had been delivered to the claimant and so he was entitled to bring s70 proceedings in principle based upon the invoices delivered.

The judge provided his reasoning, including the following:

“Where, as here, the client is in possession of invoices which are ostensibly suitable for assessment under the Act, the absence of a signature by the solicitors seems to me to be of no consequence. As was expressed by the Court of Appeal in Ex Parte d’ Aragon [1887] 3 TLR 815, and referred to in Parvez, relying on a lack of signature is not an attractive device for a solicitor to seek to avoid the scrutiny of his bill by the court when requested in time by the client to do so.”

“S70 requires the bill to be delivered but is not prescriptive as to how that delivery is undertaken. Consequently, there is also no need for me to consider the question of whether a bill can be delivered electronically without the consent of the recipient.”

Second ground

It was then argued that the action seeking an assessment of costs was issued more than 1 month after the defendant had provided the invoices, in breach of the time limit provided for by the Solicitors Act 1974. The assessment could therefore continue only if the claimant could show special circumstances that allowed him to bring a claim out of time.

The judge confirmed that a client needs to agree to monies being applied to pay the bills. “Mere acquiescence” is not sufficient and the existence of the retainer between solicitor and client is not sufficient in itself either.

In this case, however, the claimant had signed an authority within 8 minutes of receiving it on 26 July 2021. That authority specifically stated that the claimant understood and consented to the deductions and that he further understood that he was not liable for any other shortfall in the solicitors’ charges. The judge considered whether the claimant agreed to the deduction. Because he signed an authority form it was perfectly clear that he did. The judge inferred that:

“…the claimant simply wanted to hold onto as much of his damages as possible because he was not satisfied with the end figure. That view might be entirely reasonable in itself but it does not support an argument that the claimant was pressured into authorising the solicitors to retain monies from the damages.”

The judge found the bills had been paid on 26 July 2021. The claimant had therefore needed to issue proceedings by 25 August 2021.  Proceedings were, in fact, issued after that date.

Whilst the breakdown provided did confirm the time limit, the judge found that solicitors are not under any obligation to inform their client of the time limits in relation to the assessment. He relied upon the very recent case of Richard Slade and Company LLP v Erlam [2022] EWHC 325 (QB) . In this case HHJ Gosnell, sitting as a Judge of the High Court, expressed the view that previous case law did not say that a solicitor should tell the client that, if such a bill had been delivered, this started the clock running for the purposes of an assessment under the Act. He pointed out that it was not normal for provisions explaining the legal consequences of contractual terms to be applied into a contract unless there was some additional statutory or regulatory obligation to do so. If there had been any perceived need for consumer protection, it had not resulted in any change to the Act or other regulatory reform.

The judge found that the claimant was aware of his rights, but did not bring the proceedings in time.

“There is nothing to which he can now point to cause the court to exercise its discretion in holding that any special circumstances exist.”

Accordingly, the defendant’s application to strike out the claimant’s application under s70 was successful.

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

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

Optimising Costs Management: Part 2

Joanne Chase1 Comment
You can listen to the blog here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statements of Costs for Summary Assessment – Recent Developments

Bethany CollingsLeave a comment

Today, I presented at our annual commercial litigation webinar on the topic of Statements of Costs for Summary Assessment, where I covered the following:

  1. What is a summary assessment?;
  1. A review of the rules and practice direction;
  1. Recent case law and practical points; and
  1. What’s new?

Statements of Costs for Summary Assessment have been a somewhat ‘dry’ area of costs law for a long period of time, but over the last few years there has been a lot of activity and an increase in reported cases concerning breaches of CPR 44 CPD 9.5.  The Court has a fairly wide discretion when faced with such breaches by virtue of CPR 44 CPD 9.6 which states:

‘The failure by a party, without reasonable excuse, to comply with paragraph 9.5 will be taken into account by the court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment that may be necessary as a result of that failure.’

The court should also apply the case of MacDonald v Taree Holdings [2001] 1 Costs L.R. 147 when considering imposing its power under CPR 44 CPD 9.6. The test set out in this case is:

“What, if any, prejudice has that failure to comply caused to the other party? If no prejudice, then the court should go on and assess the costs in the normal way. If satisfied it has caused prejudice, the next question is: how should that prejudice be best dealt with.”

The case law that I covered in the presentation was:

1. Kuznetsov v London Borough of Camden [2019] EWHC 3910 (Admin)

2. Mahandru v Nielson [2021] EWHC 2297 (QB)

3. Changing Climates Ltd v Warmaway Limited [2021] EWHC 3117 (TCC)

4. Vine v Belfield [2021] EWHC 3068 (QB)

The above cases are all examples of where the Courts were faced with breaches of CPR 44 CPD 9.5 and they all reached different outcomes.

If you have any questions on Statements of Costs for Summary Assessment or require assistance with the preparation of a Statement of Costs or help with challenging a Statement of Costs ahead of a hearing, then please do contact me at andrew.mcaulay@clarionsolicitors.com or on 07764501252. We also offer in person or remote/video training on this area of costs law.

Delegate less important work to less expensive fee-earners

Joanne ChaseLeave a comment

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

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

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

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

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

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

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

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

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

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

Further notice from the SCCO on COP assessment delays is now available

Stephanie KayeLeave a comment

On 22 March, the SCCO released a further notice in relation to the ongoing delays with assessments.

In summary, turnaround at present is as follows:

  • Costs Officers are currently being assigned bills of costs received in or after late September.
  • The Admin Team are processing the return of assessed bills received back from the Cost Officers in the last week of February.
  • New filings for assessment received in late January are being considered.
  • Certificate request filings received in mid-March are being received and actioned as acknowledgement of the requests to receive payment before the end of the financial year.

The SCCO have requested that enquiries about the progress of bills which supported paperwork was submitted around or after late September and any e-filings that have not been accepted/rejected that were submitted after late January are limited to aid in the efforts to focus on the reduction of the backlog.

Please see the link below for the full notice released:

Notice-to-COP-customers-21-March-2022-SCCODownload

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