COST BITES 115: LOOKING AT DETAILED ASSESSMENTS (4): COSTS OF RESEARCH, NOTING BRIEFS AND PHOTOCOPYING

We are continuing with the series looking at detailed assessments by returning (not for the first, nor last) time to the judgment of Costs Judge Leonard in Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO).   The judge considered three aspects of the bill: research (where only a small item was allowed); noting briefs (described as “something of a bargain” and photocopying (largely not allowed).

“As a general principle, costs are not recoverable for undertaking research on matters which are considered to be within the general area of expertise of a solicitor competent to manage the work in hand. As a matter of normal day to day normal practice, solicitors will in fact undertake research on such matters, because no one has a comprehensive grasp of every detail of the law and any good practitioner will check their understanding by reference to textbooks and other resources, on a regular basis, as and when appropriate.”

WEBINARS ON COSTS IN 2024

“The costs judge over your shoulder”: 21st March 2024

On the 21st March 2024 I am presenting a webinar “The costs judge over your shoulder 2024: Maximising Recovery in inter partes costs”.  Booking details are available here. 

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

The summary assessment of costs: 18th March 2024

A detailed knowledge of the rules and cases relating to the summary assessment of costs is essential to every litigator.

This webinar looks at rules in detail and the practical steps that practitioners should take to maximise recovery. Booking details are available here. 

• When a summary assessment should be made
• When the receiving party is represented under a conditional fee agreement
• Where the receiving or paying party is a child or protected person
• The importance of the statement of costs
• The court’s approach to costs
• The basis of assessment
• Proportionality
• Hourly rates
• General principles applied in summary assessment
• Litigants in person
• The significance of the guideline figures for hourly rates
• In-house lawyers
• The solicitor advocate
• Counsel’s brief fee
• Expenses that are not recoverable
• Fast track trial costs
• Summary assessment and the cost of appeals
• What happens when time is short or the Schedule is served late?

The webinar also looks at those cases where the courts have provided guidance for parties undertaking a summary assessment.

THE CASE

The judge was assessing costs following a private prosecution by the receiving party.  A costs order was made under section 17 of the Prosecution of Offences Act 1985.    The test is similar, but not wholly identical, to the principles that apply in civil assessments.   Here the judge considers three specific items:

1. Research.
2. “Noting Brief” fees.
3. Photocopying.

Research

Apart from one hour on a specific issue, the time spent in research was disallowed.

1. 1. The Determining Officer has disallowed 12.6 hours of Mishcon’s time for the work undertaken by various fee earners in conducting research.

1. 1. The Appellant says that as a matter of principle, where solicitors conducting a private prosecution are required to research legal principles of some complexity, the time claimed ought to be recoverable. Checks were made of the law in relation to particular issues or questions arising from the facts of the case.

1. 1. The Appellant has helpfully prepared a spreadsheet identifying the work disallowed. Having reviewed it, I am almost entirely in agreement with the Determining Officer. As a general principle, costs are not recoverable for undertaking research on matters which are considered to be within the general area of expertise of a solicitor competent to manage the work in hand. As a matter of normal day to day normal practice, solicitors will in fact undertake research on such matters, because no one has a comprehensive grasp of every detail of the law and any good practitioner will check their understanding by reference to textbooks and other resources, on a regular basis, as and when appropriate.

1. 1. That, however, is properly regarded as an overhead of day to day practice (R v Legal Aid Board, ex p Bruce [1991] 1 WLR 1231). I agree that an exception should be made for unusual or novel matters of law, and it may be appropriate where it is necessary to consider the application of general principles to the facts of a particular case. It has to be borne in mind however that I have allowed hourly rates that are commensurate with Mishcon, as solicitors, offering the necessary expertise to undertake an exceptionally complex and weighty private prosecution.

1. 1. There is nothing in the schedule that seems to me to fall outside that general expertise except one hour spent by Alison Levitt KC on 17 April 2014 considering whether the Appellant might be in a position to apply for a review of the CPS decision not to prosecute the Defendant. I can allow that at the hourly rate I have assessed. Everything else seems to me either too broadly described to justify any additional allowance, or to fall squarely within the areas of day-to-day expertise offered by Mishcon.

Noting Briefs

Junior counsel had been sent to take notes of the hearing of a related trial.  The judge allowed the costs claimed in full, regarding them as “something of a bargain”.

1. 1. The Appellant arranged for various junior counsel to attend the trial of Luis Nobre, and to produce a note of the proceedings. The Determining Officer did not take issue with the reasonableness of that cost in principle, and nor do I.

1. 1. The appeal concerns the fees of two barristers: Laura Collier (called 2013) and Nicholas Murphy (called 2015), who attended each day of the hearing at an agreed rate of £250. The Determining Officer allowed a daily rate of £200 and £100 per half day.

1. 1. The appeal concerns the fees of barristers Laura Collier (called in 2013) and Nicholas Murphy (called in 2015), who attended each day of the hearing at an agreed rate of £250. The Determining Officer allowed a daily rate of £200, with £100 each for two half days.

1. 1. The Appellant said that this is inconsistent with an allowance of £250 per day accepted for other juniors who undertook the task. How this may have come about is not quite clear to me, but the main point is fairly straightforward.

1. 1. £250 is, in my view, a modest total fee for any barrister competent to attend and take an adequate note of half a day of a major fraud trial which might yield valuable information for the purposes of the complex prosecution undertaken by the Appellant. Mishcon appears to have agreed, with each of the juniors who undertook the task, a fee of £250 per attendance without quibbling over half days, an approach which seems to me to be eminently reasonable, if not (bearing in mind that almost all the daily fees are £250 were paid for a full day’s attendance) something of a bargain. The fees should be allowed in full.

Mishcon’s Internal Disbursements

The determining officer had allowed less than a quarter of the costs claimed.  The judge held that photocopying was not recoverable.

1. 1. The Appellant seeks repayment of £21,665.25 charged by Mishcon for in-house photocopying. £4,379.75 has been allowed by the Determining Officer.

1. 1. The authorities to which I have been referred are largely civil authorities: Johnson and Others v Reed Corrugated Cases Ltd [1997] Costs L.R. (Core Vol.) 180 in particular. The general rule in civil cases is that, on assessment, photocopying will be regarded as an overhead, and not recoverable as a separate cost unless there are unusual circumstances or where the documents copied are unusually numerous in relation to the nature of the case.

1. 1. Precisely the same principle is applicable in criminal proceedings: see R v Zemb [1985] Costs LR (Core) 442. The Appellant’s complaint is that the Determining Officer did not allow internal photocopying costs at a commercial rate: in my view she would have been entitled to allow nothing at all.

1. I have allowed hourly rates commensurate with Mishcon managing a very complex, very high value fraud case with a very substantial volume of documentation. I have seen nothing to substantiate the proposition that the volume of internal photocopying undertaken by Mishcon was exceptional for a case of this nature. In my view, this head of costs not recoverable in principle and I must disallow it.