THE SUMMARY ASSESSMENT OF COSTS: THE DANGERS OF DEPARTING FROM THE CORRECT FORM: A “CHAOTIC” SCHEDULE OF COSTS IS NEVER GOING TO HELP YOUR CAUSE

In Changing Climates Ltd v Warmaway Ltd [2021] EWHC 3117 (TCC) HHJ Sarah Watson issued a warning about departing from the standard form when seeking a summary assessment of costs after a hearing.

“There is a reason that the court requires a standard form for a schedule of costs in litigation.  It is because the parties, solicitors, counsel and judges develop a degree of familiarity with the format.  They know what costs go where and it becomes quite easy to look at the schedule, with the various headings … and form a view as to whether the costs are reasonably incurred and proportionate in amount.”

THE CASE

The judge was assessing the claimant’s costs after a summary judgment application.

THE JUDGE’S COMMENT ON THE CLAIMANT’S COSTS SCHEDULE

1. There is a reason that the court requires a standard form for a schedule of costs in litigation.  It is because the parties, solicitors, counsel and judges develop a degree of familiarity with the format.  They know what costs go where and it becomes quite easy to look at the schedule, with the various headings, in the way that the defendant produced its schedule, and form a view as to whether the costs are reasonably incurred and proportionate in amount.

2. There are two problems with the claimant’s costs schedule today.  One is the fact that the court does not have the updated costs schedule, which I understand has been prepared.  Also the defendant did not receive it until this morning and of course it needed to be served at least a day before the hearing.

3. The second problem, which is to my mind not a purely formal problem, not a question of form for the sake of it, is that the schedule is not in the correct form.  What I have got is a schedule which in some respects largely replicates the headings of form N260,  but it confuses matters because it contains additional headings, which the court is not used to, including “Preparation for the hearing on 18 August,” which includes work that one would normally expect to see properly allocated to the other headings, such as  attending on the claimant, attending on the defendant, attending on others or work on documents.

4. Normally, under the heading, “work done attending the claimant,” you have a breakdown of “personal attendances” (meetings or, these days, Skype meetings or Teams meetings) “letters in and out” and “telephone”.  Under “attendance on opponents” and “attendance on others” you have the same breakdown.  Obviously, site inspection is not relevant here.  Then you have “attendance at the hearing” and “work done on documents”, which is normally broken down in the way that the defendant’s schedule is, so you can see how long was spent on the pleadings, how long was spent on the acknowledgement of service, preparation of witness statements etc.  That is the correct form and that enables the court to take a view.

5. The problem I have with this schedule is that that detail is not given and it is much harder for the court to assess, and for defendant to make detailed submissions as to, whether something is reasonable or proportionate in amount in the absence of the level of detail you would expect and the categorisation in the usual form.  I do have concerns here that the descriptions of the work seem to duplicate each other to some degree in that we have in the “work done on documents”, “review of evidence”, “drafting claimant’s further evidence”, “reviewing and amending” and “producing bundles”.  Those seem to be part of work done on documents.  Yet, work for the preparation for the hearing is described as “drafting, bundling, travelling, waiting” (obviously waiting is not relevant for a remote hearing) and “application”.  That suggests that it includes some work relating to the application itself.  There is also a heading “letters and emails in and out; telephone attendances and meetings.”  The schedule is hopelessly confused and not in the correct form and it does not enable the court easily to form view as to what is proportionate. 

6. Therefore, all I can do is do the best I can, taking into account that, on the face of it, whilst there does not seem in there anything disproportionate about the rates charged, there does seem to be confusion and possible overlap between the various headings, particularly “attendance on documents” and “preparation for the hearing,” which seem to overlap, and also, possibly, “attendance on the claimant,” because it is suggested that the reason that there are nine and a half hours of assistant solicitor’s time is for attending on the claimant and taking a witness statement.  If that includes taking witness statements, “attendance on documents” and “preparation for the hearing” together seem on the high side.

7. All I can do is the best I can, taking a broad-brush approach and looking at the overall costs.  It seems to me that the solicitors’ time is high.  I am not suggesting they have double-counted the same work, but it is not clear what work has been allocated to which category.  In terms of the work done under “preparation for the hearing”, there is a staggering twenty-one hours of trainee solicitors’ time and seventeen hours of assistant solicitor’s time for a hearing at which the claimant was represented by counsel who produced an excellent dramatis personae and chronology and skeleton.  Counsel did the work in terms of the preparation for the hearing, other than the preparation of the bundle.  I do appreciate that there was considerable work in preparing the bundle, as there always is.  I also recall that I thanked the claimant for preparing an additional chronological bundle, which was extremely helpful.  It was suggested that it was necessary to do that to get the parties through the hearing which was listed for two hours when they had asked for a three-hour hearing.  That time estimate was probably optimistic.

8.  I pause here to say, for solicitors to take into account, that this case was underlisted.  I appreciate in this case that the court reduced a three-hour time estimate to two hours.  It seems to me that this case was never a two-hour case or a three-hour case.  If I had not had an opportunity to do a considerable amount of reading before the hearing, it would probably have been adjourned part-heard.  The parties should, in my view, have asked for a hearing with a time estimate of a day.

9. I take into account the fact the complexity and the amount of documentation in this case was that it really should have been a day’s hearing.  Taking into account the rather chaotic schedule of costs I have in front of me, even though this is a £750,000 claim with some complexity which led to my delivering an oral judgment that took about an hour and a half to deliver, nonetheless it seems to me that the costs are higher than I would expect, given the heavy reliance on counsel.  Counsel has been involved at all stages, settled the pleadings, settled the witness statements, prepared the skeleton, prepared the additional documents to accompany with the skeleton, so there has been heavy reliance on counsel.   I also take into account the fact that, as I have said, the schedule of costs, the supplemental schedule was not served on the court at all, or at least, it has not reached me.  More importantly, was not served until this morning on the defendant.  Taking a broad-brush approach and looking at the overall total, I summarily assess the in the sum of £35,000 in total, which is the figure that I consider reflects costs that are reasonable and proportionate in amount for this application.  I order that the defendant shall pay the claimant’s costs, summarily assessed in the sum of £35,000.