COST BITES 111: LOOKING AT DETAILED ASSESSMENTS (1): YOU SHOULDN’T BE CLAIMING 62.3 HOURS FOR DRAFTING A LETTER OF CLAIM
It is surprising how few legal practitioners have actually been to a detailed assessment hearing, my own enquiries suggest it is a tiny fraction of litigators. A much higher percentage, however, have had cause to comment, possibly complain, about the outcome. The paying party believing it has paid to much, the receiving party that it is too little. The situation is that many who work in civil litigation have little practical understanding of the process that ensures they are paid. This has profound practical consequences in relation to the way that files are run and costs are often not recovered. Over the next few weeks we will be looking at a few decisions in detailed assessment hearings so that litigators can understand the detailed scrutiny that each item claimed can undergo in that process. Here we look at the judgment of Cost Judge James in HD v Northern Devon Healthcare NHS Trust  EWHC 2118 (SCCO), in particular the close analysis of the claims made for letters of claim.
“… notwithstanding the individual journeys of each of the Claimants, as they have all suffered due to the same kind of treatment it makes sense to have drafted up a precedent for those sections of the Letter of Claim that were always going to be the same or at least very similar in content. The issue is simply that, having done so, the amounts of time spent on drafting individual Letters of Claim which are both excessively lengthy and largely precedent-led, are neither reasonable nor proportionate.”
The judge was assessing costs in a number of clinical negligence cases relating to vaginal mesh cases. The claimants’ solicitor appears to have spent in excess of 60 hours for drafting the letters of claim. On assessment the length and utility of the letters were closely considered and the hours claimed reduced to 15 in total.
THE JUDGMENT ON THE LETTERS OF CLAIM
 Ms McDonald likened the Letters of Claim to a [prolix] Skeleton Argument, and Mr Dunne likened them to a Pleading, arguing that, under the CHA, they had to be exceptionally detailed so as to put the parties in a position to settle at a Mediation before proceedings were even issued.
 Turning to the Claims Handling Agreement (‘CHA’) it required Fortitude Law to do certain things, enumerated at Clause 4.2.2 [as exhibited to Mr Hanison’s Witness Statement]. The Letters of Claim had to:
Be pre-action protocol compliant
Be accompanied by generic supportive independent evidence
If past 3 years’ primary limitation period, address limitation; in any event confirm date of knowledge
Address Breach of Duty
Specify what, ‘but for’ the alleged breach, the Claimant would have done, to include non-surgical and (if relevant) surgical alternatives
If a ‘Chester v Afshar’ Causation argument is relied upon, confirm this specifically
If any references, guidelines, or statistics were relied upon, provide copies with the Letter of Claim