How bills are assessed - written by Shamas Alexander - 03/08/2021

How a Bill of Costs is really assessed – A Paying Party’s Perspective?

 

Written by Shamas Alexander – August 2021

 

You will not be surprised that the assessment of costs is somewhat complex. You will also not be surprised that there are a multitude of components involved in assessing a bill such as the nature of a case; proportionality; reasonableness; settlement and any factors that have cost implications. The list is non-exhaustive and be prepared that the paying party will not have an ‘objective’ approach to their assessment. Any paying party will dispute multiple items in a bill, the following points will illustrate on what grounds a contention can be raised and the types of arguments raised.

 

1. Excessiveness

 

One of the first things the assessor will look at is whether the type of work completed by the fee-earner was excessive in relation to the nature of the case. Items targeted will be:

 

  • Routine communications (letters/telephone calls/emails) – it will be argued that there are too many.
  • Hourly rate applied in the Bill for the fee earners, type of work – it would be checked that it is not unnecessarily higher than the guideline hourly rates.
  • Time – any high entry items such as reviewing bundles or drafting documents will be disputed.
  • File notes – this type of item will always be at the forefront of a dispute, as it will be purported that such an entry is un-progressive to the case. However, file notes are recoverable from the paying party (Brush v Bower Cotton & Bower (a firm) [1993] 1 WLR 1328).

 

These will generally be disputed even though the case may justify the actual amount claimed for an entry. An example being a complex clinical negligence matter where the client is vulnerable and requires additional support to ensure they are fully aware of the progress of their case. In such circumstances the fee-earner may need to spend more time in attendance with the client to ascertain instructions and ensure smooth progression of the case. This is justified as the fee-earner would be acting in the best interests of their client and upholding the rule of law and promoting justice.

 

2. Retainer

 

If there is no valid retainer between the client and the acting solicitor, this can undermine the work carried out by the fee-earner and in doing so the entire claim for costs. It’s no surprise then that the paying party will, more often than not, target this item. However, such a document is privileged and there is case law to counteract this dispute. Therefore, the Paying Party, will seek to dispute the entire costs and raise the same in The Points of Dispute, so that if the document is not released then the Costs Assessor/Costs Judge can have sight to the retainer, if necessary.

 

Furthermore, the paying party is concerned with this element as they do not wish for the ‘indemnity principle’ to be breached. The amount payable should be to indemnify the receiving party for their costs of the case and not be a bonus or reward. If the amount payable is not more than what the client would pay their solicitor, then the indemnity principle is not breached. The case of Bailey v IBC Vehicles [1998] EWCA Civ 566 is gold standard. This case confirms that the signature of a Bill of Costs is not empty formality, it is proof for the paying party that the costs claimed are accurate and not more than the receiving party is entitled to recover. This case should satisfy any doubt in relation to the indemnity principle.

 

3. Proportionality / Reasonableness

 

These general concepts are overarching during the full conduct of any case. During a detailed assessment of a bill, a paying party can interpret any item they don’t agree with as contrary to being proportionate or reasonable to the factors of the case. This can impact any element of the bill, and these can include:

 

  • Disbursements – the paying party could argue that “it’s unreasonable to incur ‘X’ type of costs given the value/nature of the claim being…”
  • Experts – it will be argued that it was unreasonable to instruct medical experts given the simple nature of the case;
  • Counsel’s fees – a paying party would generally allege this to be excessive, if it becomes apparent that a fee earner has had heavy reliance on Counsel or Counsel use could have been avoided;
  • Work carried out by different grade fee-earners – if there is a higher quantity of work carried out by a Senior Fee earner at Grade A or B the paying party will dispute this if the matter could in fact have been dealt with by a Grade C/D.

 

4. The Eight Pillars of Wisdom – CPR44.4(3)

 

  1. The conduct of all the parties, including in particular: –
    • Conduct before, as well as during, the proceedings; and
    • The efforts made, if any, before and during the proceedings in order to try to resolve the dispute.
  2. The amount of value of any money or property involved.
  3. The importance of the matter to the parties.
  4. The particular complexity of the matter or the difficulty or novelty of the questions raised.
  5. The skill, effort, specialised knowledge and responsibility involved.
  6. The time spent on the case.
  7. The place where and the circumstances in which the work or any part of it was done.
  8. The receiving party’s last approved or agreed budget.

 

These pillars of wisdom encapsulate the main grounds for assessing a Bill of Costs, and it is often seen that these points are raised for the benefit of the paying or receiving party when it comes to assessment. The paying party will endeavour to dispute items that conflict with the seven pillars and will either invite the court to assess an item as nil or make a reduced offer on that entry.

 

An example can be that a simple personal injury case such as a minor knee injury on a plane took 4 years to settle. The paying party will argue that if the conducting solicitors acted promptly/efficiently the matter could have settled within 2 years. This type of dispute applies points 1 and 6 above.

 

Conclusion

 

Withstanding the above, how the Paying Party assesses a Bill of Costs is always specific to the facts of the case, but the above gives a general consensus. The role of a Paying Party Costs Lawyer/Draftsman is to make attempts to undermine the bill in order to make a reduced offer of settlement, and sometimes this can mean disputing the Bill in its entirety.

 

Thus, given there are a number of factors involved during assessment, be sure to know your case and bill thoroughly, as concessions are likely to be made by a Paying Party. Furthermore, if the case is set down for assessment by the court, the Judge will take a reasoned and unbiased view of the Bill of Costs, so all justice is restored.

 

Cost Law Services Limited is a unique legal costs Company with a national presence dedicated to its clients’ needs. The firm has a skilled workforce with an ability to manage all elements of the legal costs process of any type of case. If you have any questions in relation to this article of if you would like further advice in relation legal costs, please email us at info@Costlaw.com or Visit our Website. www.Costlaw.com.

 

Our Services:

Our Offices Across UK:

Our team is made up of:

Current Vacancies:

Cost Law Services

Our Cost Lawyers and Cost Draftsmen, have considerable experience in dealing with a range of legal billing services.

View More

For more information on our cost drafting and billing services call us on 020 3633 6261 or email info@costlaw.com