The Court of Appeal has ruled that a judge was right to strike out a bill of costs because it was not possible to identify which lawyers worked on the case.

Lord Justice Newey, ruling in AKC v Barking, Havering and Redbridge University Hospitals NHS Trust, said he could ‘piece together’ some information from the details belatedly provided by the claimant, but it was still not possible to say which of the 33 fee earners named carried out particular work.

The judge, backed by Lord Justice Dingemans and Lord Justice Lewis, said the right course was to strike out the existing bill of costs and order the claimant to serve a replacement which complied with Civil Procedure Rules.

The claimant, represented by national firm Irwin Mitchell, had made a successful claim for clinical negligence against the defendant and subsequently started detailed assessment proceedings. Her bill of costs comprised a paper bill up to April 2018 and an electronic bill thereafter.

Defendant lawyers served points of dispute, arguing that the bill was not properly certified, it failed to provide the name and status of each fee earner and did not include details about their grade. An application was later made to have the bill struck out and the claimant required to serve a new one.

After a costs judge dismissed the application, the defendant’s appeal was upheld by Mrs Justice Steyn on the basis that the bill had insufficient detail.

On the claimant’s appeal, the court heard that the paper bill stated that ‘a solicitor had day to day conduct of the matter with assistance from junior fee earners’. Hourly rates were stated and costs claimed set out item by item. The electronic bill provided no names or initials of anyone but counsel, and grades were not specified. Names were provided only once the defendant made a request under CPR Part 18.

In her judgment, Steyn had said the paper bill did not comply with the requirements to specify each individual named employee and their hourly rate and status. She further held that an electronic bill must include both the names (or at least initials) of fee earners and their grades.

Steyn had added: ‘Without [details of names], the bill is opaque. In order to be fully functional, the spreadsheet must enable the paying party and the court to see what work any particular fee earner has undertaken.’

In the appeal ruling, Newey said that a paper bill did not strictly have to include fee earners’ names, but the bill in this case did not fully meet the requirement to give fee earners’ status.

On the electronic bill, Newey agreed with the judge that without a breakdown of work undertaken by each individual, it was impossible to know what they could claim for. The paying party also needed to check the experience and expertise of fee earners when considering whether the rate claimed was reasonable.

He added: ‘The upshot is that, in my view, any electronic bill, whether in Precedent S spreadsheet format or any other spreadsheet format, must include the name, the SCCO grade and, in so far as it adds anything to the grade, the status of each fee earner except possibly in so far as the receiving party’s solicitors may have outsourced work to an agency.’

Reacting to the judgment, Jack Ridgway, chair of the Association of Costs Lawyers, said it was good news that the Court of Appeal recognised the need to issue guidance on bills of costs, especially as many lawyers are still getting to grips with the electronic bill.

'The outcome here achieves a sensible balance – providing more upfront information about the fee-earners who worked on a matter will help resolve cases more quickly without unnecessary toing and froing between the parties.'


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