Tag: precedent s

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

Joanne ChaseLeave a comment

In AKC -v- Barking, Havering & Redbridge University Hospitals NHS Trust [2021] EWHC 2607 (QB) the Court of Appeal confirmed that a High Court judge, Mrs Justice Steyn, had acted appropriately in striking out a bill of costs because it did not identify which lawyers worked on the case.

Lord Justice Newey, backed by Lord Justice Dingemans and Lord Justice Lewis, agreed that the right course was to strike out the existing bill of costs and order the claimant to serve a replacement which complied with the Civil Procedure Rules.

Background

In a clinical negligence matter, the claimant filed a bill partially on paper and partially electronically (as was allowed).  The defendant applied to strike out the bill based on the fact that the signatory of the bill of costs could not be identified and the bill of costs failed to provide proper fee earner information. The bill was not struck out by the costs judge.

On appeal in the High Court it was held that the failure to be able to identify the person who signed the bill meant it did not comply with the rules and that it should be struck out. The claimant was therefore ordered to file a new bill of costs. This decision was discussed here by Andrew McAulay and Matthew Rose.

The decision of the High Court judge was then appealed to the Court of Appeal, which upheld it. Here are some conclusions from the appeal.

Fee earners’ statuses, but not their names, are required in a paper bill of costs

In the appeal ruling, Newey LJ said that a paper bill did not strictly have to include fee earners’ names, but the bill in this case did not fully meet the requirement to give fee earners’ status. In the absence of a fee earner’s name, there is still a requirement to state any professional qualification of a fee earner and, unless the SCCO grade is given, the years of post-qualification experience.

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

The electronic bill provided no names or initials of anyone but counsel, and grades were not specified. Names were provided only once the defendant made a request under CPR Part 18.

On the electronic bill, Newey LJ agreed with Steyn J that without a breakdown of work undertaken by each individual, it was impossible to know what they could claim for. The paying party needs to be able to check the experience and expertise of fee earners when considering whether the rate claimed was reasonable. The name of each fee earner involved (with one exception, see below) must be included in the electronic bill of costs. 

A receiving party who elects to use the Precedent S spreadsheet format must include in the bill of costs information sufficient to enable the columns of worksheet 5 to be completed. There is no escape from this requirement, as an electronic bill in ‘any other spreadsheet format’ must also provide as much fee earner information as a duly completed Precedent S.

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

The omission of the name of the “Medico-Legal Assistant” was not explained. However, it was suggested that the receiving party’s solicitors may have outsourced the work in question to an agency with the result that it was not appropriate to insert the name of an individual. As Mr Marven pointed out, Crane v Canons Leisure Centre [2007] EWCA Civ 1352, [2008] 1 WLR 2549 shows that delegated work can sometimes be charged for by way of profit costs rather than disbursements. It seems, therefore, that even a bill in Precedent S format need not necessarily include anything in the “LTM Name” column of worksheet 5 in respect of work delegated to an outside agency.

A bill of costs which fails fully to comply with the rules will not invariably be struck out

Typically, a defect will, at most, warrant a lesser sanction. Omitted information can be provided later in replies to points of dispute or via a request under CPR Part 18 to avoid the bill being struck out. However, transparency about the fee-earners who worked on a matter is likely to allow negotiations to proceed more smoothly and avoid wasted costs.

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

The latest Precedent H guidance notes

Anna LockyerLeave a comment

The precedent H guidance notes have never aligned with the precedent S guidance notes (Phases and Tasks Reference and Lookup table in Precedent S (bill of costs)) until the update to the precedent H guidance notes which was made last month, this update has addressed some of those discrepancies.

Please find below the amendments that have been made to the guidance notes:

Pre-action

The precedent H guidance notes states that settlement discussions, advising on settlement and Part 36 offers before proceedings were issued are to be included in the Preaction phase. However, in the Precedent S guidance these discussions are included in the ADR/Settlement phase (task “Other Settlement Matters”) . The precedent H guidance notes must be followed therefore any preaction settlement discussions should be included in the preaction phase. 

Issue/statements of case

The precedent H guidance notes have been amended to include “amendments to statements of case” in this phase, the previous guidance stated that these should be excluded from this phase. This amendment has resulted in alignment with the Precedent S guidance. 

CMC

The precedent H guidance notes have been amended to include any further CMCs that have been built into the proposed directions order whereas previously the notes stated that any additional CMCs were not to be included in this phase. The position remains regarding any estimated CMCs that have not been proposed in the directions order, these are to be included as a contingent cost. Any disclosure work, i.e. list of disclosure issues, EDQ  should be included in the disclosure phase.  

Budget

The costs in relation to this phase includes inconsistencies which present numerous difficulties. The Precedent H Guidance Notes includes “correspondence with opponent to agree directions and budgets, where possible”, and “preparation for, and attendance at, the CMC”. The same applies in relation to the PTR phase, which includes “preparation of updated costs budgets and reviewing opponent’s budget”, “correspondence with opponent to agree directions and costs budgets, if possible” and “preparation for and attendance at the PTR”. While the precedent H guidance note specifically excludes preparation of the costs budget for the first CMC, it doesn’t specifically exclude preparation of Precedent R. The Precedent S description of this task is “work on budgeting between the parties following initial completion of the first budget, including the monitoring of costs incurred against the budget and any applications for variation of the budget” –  it doesn’t mention the drafting of Precedent R and seems to relate to work post CMC.

Furthermore, in para 7.2 of PD3E the 2% cap relates to all recoverable costs of the budgeting and costs management process other than the recoverable costs of initially completing the Precedent H. If some costs budgeting items are included in the CMC and PTR phases (i.e. following the Precedent H Guidance Note), practically how is the 2% figure on the front page of Precedent H calculated? Should it include the budgeting items which appear in the CMC and PTR phases of Precedent H, or is it exclusive of them? And, what exactly is meant by “budget process” in relation to this 2% cap?

Unfortunately there is no guidance regarding the budget process or “associated material” that is referred to in the guidance notes – does this include composite summaries, breakdowns of costs?

One solution for this phase is to time record in line with the precedent S guidance notes and then when it comes to preparing the budget assess what aspects of the % cap belongs in the CCMC stage. If the time is recorded as CCMC it is a more onerous task to ascertain what element of the CCMC phase is relevant to the % cap.

Trial: The guidance note has been amended to now include counsel’s brief fee in the trial preparation phase rather than the trial phase. 

Settlement phase: The precedent H guidance note previously excluded mediation from this phase, this has now been amended to include mediation. 

Definition of budgeted and incurred costs – CPR 3.15 and PD 3E para 7.4 Incurred costs are now all costs incurred up to and including the date of the first costs management order, unless otherwise ordered. Budgeted costs are all costs to be incurred after the date of the first costs management order.

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