HEARING AND TRIAL BUNDLES: ARE THE COSTS OF PREPARATION RECOVERABLE? WELL, YES THEY ARE (IN PART)

There was some discussion on Twitter earlier this evening as to whether the cost of preparing bundles is recoverable at all.  Since we have not had a case featuring a judicial complaint about bundles for several months*  and “bundle cases” are the most widely red on this blog, this led to look at this issue in detail.  Assertions that “the costs of bundles are not recoverable” are based on a misunderstanding of the guidance.  A specific element of the preparation of the bundles is not regarded as fee earner work.   However the preparation of bundles generally is included in the guidance relating to recoverable costs.

The broad assertion that “the preparation of bundles is not recoverable” is not, in fact, justified by looking at the guidance.   In fact the guidance says the exact opposite.  The challenge lies with the receiving party in being able to distinguish between those elements of preparation of the  bundle which are recoverable and those that are not.

*Do not get complacent, this is usually the calm before the storm.

A WEBINAR ON THE ASSESSMENT OF COSTS

I am presenting a webinar on the 6th April 2023 – The Costs Judge Over Your Shoulder 2023 – Maximising recovery. Booking details are available here.

Details are at the end of this post.

THE GUIDANCE NOTES ON PRECEDENT H

A useful place to start is the Guidance Notes for the preparation of Precedent H.

These Guidance Notes can be found here.

The Notes set out two columns. The first column is a section as to what the costs budget should include, the second what the budget “Does NOT include”.

AT THE CCMC STAGE

The guidelines are silent on the costs of the bundle at the CCMC stage.  However the Notes specifically state the costs include “arranging a CMC”.  Since the directions for a CMC or CCMC habitually include a provision that a bundle be lodged it is difficult to see why some of the costs relating to this should not be recoverable.

WHAT IS INCLUDED AT THE PTR STAGE

In the PTR stage the word “Bundle” is specifically included in the column as to what the budget should include.

So preparing the bundle in terms of the preparation of the index and determining what documents should be in it is, according to the Guidelines, within the element of recoverable costs.

WHAT IS NOT INCLUDED AT THE PTR STAGE

The exclusion is in relation to a specific element of the bundle.

“Assembling and/or copying the bundle (this is not fee earners’ work)”

TRIAL PREPARATION: TRIAL BUNDLES ARE IN THE HEADING OF RECOVERABLE COSTS

Again in the first column (recoverable costs) we have “Trial bundles”.

Again “Assembling and/or copying the trial bundle (this is not fee earners’ work) is in the second column.

WHICH MEANS THAT AN ELEMENT OF THE PREPARATION OF BUNDLES IS RECOVERABLE

As ever the important issue here is to distinguish between the “mental” element of bundle preparation in reviewing the case and determining what documents should be included, and in what order, and the “menial” element (this is not to be taken as any disparagement of those who do this work). This can only be done by a careful record being taken of the work done and what it involved.

With the advent of electronic bundles it may be rarer now for someone to spend hours (sometimes days) watching over a photocopier and then punching holes and placing documents in files.  Much of the work can be done on the screen.   If the fee earner can show that this was not “assembling or copying” of the bundle, then the costs should be recoverable.

MORE ABOUT THE WEBINAR ON THE ASSESSMENT OF COSTS

Booking details are available here.

“Here the reduction was very large and the reason for the reduction was in large measure because the solicitors had failed to keep attendance notes.  Such a failure materially contributes to the length and cost of assessment proceedings… [It] leads to a scrambling around among the papers when the costs are queried to seek to work out what was done at different stages often without any clear answer, followed by a guessing game on the part of the Costs Judge.”

Christopher Clarke J,in Fattal v Walbrook Trustees (Jersey) Ltd [2009] EWHC 1674 (Ch)

The assessment of costs is a crucial stage in litigation. Detailed assessment usually takes place after attempts at settlement of costs have failed and there are some major differences between the parties.  Relatively few litigators have experience of attending a detailed assessment and of the difficulties that can flow. This webinar looks at the steps that litigators should take to assist their client’s case when costs are being assessed, not just from at the assessment itself but from the outset.

It looks at what happens in a detailed assessment and what steps litigators should take from the start of the case to assessment to maximise recovery.  The solicitor’s conduct of the case will be closely examined and, on occasion, every item scrutinised in detail.

The webinar uses examples from reported cases to show where failures and omissions by the receiving party has led to their not recovering costs, or led to costs being substantially reduced.

• What happens at a detailed assessment?
• Where can things go wrong on assessment?
• Why time records and attendance notes matter
• What is the judge considering when assessing costs?
• What is the costs judge looking at?
• What is the costs judge looking for?
• Strategies – from the start of a case – for keeping the costs judge happy