DEFENDANT’S APPLICATION FOR AN ORDER THAT CLAIMANT REDRAW BILL OF COSTS DISMISSED: EXPERIENCE OF FEE EARNERS IS A MATTER FOR THE DETAILED ASSESSMENT PROCESS

An interesting point was considered by Costs Judge Nangalingam in Brierley v Otuo & Ors [2023] EWHC 275 (SCCO). The defendant paying party argued that a bill of costs should be redrawn.  One of the grounds for the application was that the fee earner’s named did not, in fact, have the requisite number of years experience in practice, having worked elsewhere.  The judge held that the bill complied with the requirements.  If the defendant wanted to take a point in relation to the actual experience of a fee earner this should be raised on detailed assessment.  This, fortunately, means a receiving party does not have to carry out a detailed analysis of a fee earner’s c.v. before preparing a bill of costs.

“I am satisfied the amended bill is compliant in providing the name, status (e.g. partner), qualification (e.g. solicitor) and date of admission to the roll of solicitors (from which years of post-qualification experience may be calculated)… It is thereafter entirely a matter for a paying party if they wish to raise in their points of dispute an argument that a fee earner’s actual years of post-qualification experience is not commensurate with the hourly rate being sought.“

THE CASE

One of the defendant paying parties in an action made an application that the claimant’s bill of costs be redrawn to “properly” described the status of the fee earners working on the matter.

THE GROUNDS OF THE DEFENDANT’S APPLICATION

The judge set out the grounds of the defendant’s application.

“The BoC remains miscertified as to accuracy and completeness insofar as it fails to identify the various fee earners by name, status (qualification and number of years post qualification experience) and hourly rate claimed by each fee earner for their work and identifying those works claimed accordingly. The BoC is intolerably opaque. The Paying Party is unable to provide any points of dispute to individual costs until such details are provided in an amended BoC after the current bill is amended or struck out.”

1. 1. The Defendants’ application is dated 17 March 2022 and was sealed by the court on 19 March 2022.

1. 1. The application followed correspondence dated 12 January 2022 serving the bill of costs.

1. 1. An amended bill of costs was served on 30 March 2022. Whilst the covering letter serving the amended bill does not specify the reason for the amendment to be the paying parties’ application, it is obvious that the application prompted the amendment and, subject to arguments as to costs, the paying parties have been successful in securing the amendment their application set out to achieve.

WAS THE BILL COMPLIANT?

1. 1. The question thereafter is whether, within the terms of the application as presented, the amended bill is compliant given the court of appeal guidance following the case of AKC -v- Barking, Havering & Redbridge University Hospitals NHS Trust [2022] EWCA Civ 630.

1. 1. Turning to the amended bill served on 30 March 2022, the narrative sets out the name, status and qualification of four solicitors (three of whom are partners) and their respective dates of admission to the roll of solicitors.

1. 1. Mr Otuo took issue with the failure to spell out how many years of post-qualification experience each solicitor had, alleging that Mr Rimmer had spent a period of time post qualification working for an insurance company in a capacity that would not count towards his post qualification years of experience.

1. 1. Mr Meehan confessed to being caught off guard by this allegation, and it certainly did not form part of the application before the court nor the evidence presented in support.

1. 1. Having reviewed paragraphs 39 to 41 of the court of appeal’s guidance with respect to paper bills, I am satisfied the amended bill is compliant in providing the name, status (e.g. partner), qualification (e.g. solicitor) and date of admission to the roll of solicitors (from which years of post-qualification experience may be calculated).

1. 1. It is thereafter entirely a matter for a paying party if they wish to raise in their points of dispute an argument that a fee earner’s actual years of post-qualification experience is not commensurate with the hourly rate being sought.

1. 1. In terms of the differing requirements identified by the court of appeal as between the fee earner information required of a paper bill as compared with an electronic bill, I also address Mr Otuo’s argument that the paper bill served in fact ought to have been an electronic bill. I am not required to address this point because it is not in fact a properly articulated factor in the application. However, as a point of principle, if the wrong format of bill has been served it is better addressed at this stage than at the start of a detailed assessment hearing.

1. 1. The genesis of Mr Otuo’s argument is the judgment of Steyn J in the first appeal in AKC, i.e. [2021] EWHC 2607 (QB). Mr Otuo placed reliance on references to paragraph 5 of the practice direction to rule 47 of the Civil Procedure Rules, and referred to Steyn J’s comment that “It is common ground that, in this case, an electronic bill was required in respect of work undertaken after 6 April 2018, whereas a paper bill was permissible in respect of work undertaken up to that date.”

1. 1. Mr Otuo raised an argument that the paper bill served on him includes work which post-dates 6 April 2018 and argued therefore he ought to have been served with an electronic bill for such work.

1. 1. Mr Meehan relies on paragraph 5.1(a) of the practice direction to rule 47 of the Civil Procedure Rules and observes the underlying litigation from which the order for costs flows was not a Part 7 multi-track claim. In those circumstances, the receiving party may elect whether to present an electronic bill or a paper bill.

1. 1. In the index matter, the receiving party has exercised their discretion to present a paper bill.

1. 1. Accordingly, on all limbs of this application to redraw the bill, I find in favour of the receiving party and the application is therefore dismissed. There are no procedural irregularities that would otherwise compel or convince me that the latest version of the bill of costs needs to be redrawn and re-served.

1. 1. The costs of this application will be reserved to be addressed at the conclusion of the detailed assessment in this matter. In the event the bill of costs is compromised, a standalone remote hearing may be listed to address the issue of the costs of this application.

1. Upon the handing down of this judgment, the parties will also receive sealed copies of a directions order which is intended to effectively case manage the matter to a detailed assessment hearing.