The defendant costs specialists

Signature to the bill

By on Jun 22, 2011 | 12 comments

Lord Justice Henry’s held in Bailey v IBC Vehicles [1998] EWCA Civ 566 that:

“The signature of the bill of costs under the Rules is effectively the certificate by an officer of the Court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client under a contentious business agreement. The Court can (and should unless there is evidence to the contrary) assume that his signature to the bill of costs shows that the indemnity principle has not been offended.”

Costs lawyers and law costs draftsmen who have worked in costs for any length of time will have their own views as to the wisdom of the idea that solicitors can be trusted to self-certify their bills.

However, an interesting article in Solicitors Journal, under the heading “John Taylor investigates why solicitors are so prone to committing extraordinary feats of fraud”, casts further light on the subject.

Recent research revealed:

“solicitors, or trainee solicitors on which the research was based, show no greater ethical reluctance in respect of what might be best described as day-to-day petty illegal acts – for example, travelling on the train without paying, disobeying road signs, minor fiddling of expenses, claiming small amounts of overtime which they haven’t worked – than the public in general. …

Law attracts the type of person who scores highly on the mild social deviance scale. … There is a high correlation between mild social deviance (such as being paid in cash without paying tax or travelling on trains without paying) and attraction of prestige and status. This indicates that people who are attracted to law because of its status would also be prepared to commit minor frauds.”

Something for costs judges to think about when the receiving party next seeks to rely on the signature to the bill…

    12 Comments

  1. does challenging an item on the basis of something that isnt true or when you dont actually consider the objection to be sustainable constitute fraud? or is that just pleading your best case

    Annon

    22nd June 2011

  2. Happily,the Bailey principles are still being enforced in appropriate cases. I was involved in a Regional Costs Judge case where the Court found that as the Claimants Solicitors had mis-certified their bill,neither the Paying Party nor the Court could have any confidence in the accuracy of any item in it and therefore the Judge would be scrutinising claims much more closely than would normally be the case. Not surprisingly the Bill was slashed and the Receiving Party ordered to pay the costs of the entire Detailed Assessment. As the Judge put it so succinctly the Court had to decide if it was :COCK UP or CONSPIRACY ! That of course was an extreme case. We all see bills where an incorrect Success Fee is claimed or the wrong charging rate is applied. However it is a quantum leap to get a Judge in these circumstances to say that this satisfies the CPR Rule 44.14 misconduct test.Do remember that the signature/verification of the bill can work both ways. I seem to remember that Master Campbell in Kutsi refused the Application for relief from sanction because the bill had been certified as accurate and the Supervising Partner had not picked up the failure to give Notice of Funding in his numerous file reviews !

    Ian Cosgrove

    22nd June 2011

  3. there is agrowing trend for Defendants to try and get behind the signature to a bill by alleging effectively fraud, for anything.

    For example, if the bill doesnt claim “guideline” rates, its a fraud – what tosh!

    Unfortunately, its a desperate gamble which frequently blows up in their face – I had an assessment a few months back where the DJ was so incensed he reserved the DA costs and ordered the Partner of the Defendants Solicitors (the Assessment was being coonducted by seperate negotiators) to appear and show cause why they shouldnt pay the costs personally

    Anonymous

    22nd June 2011

  4. In what Court?

    GR

    22nd June 2011

  5. Does this not go back to the hourly rate argument for Costs Draftsman. If the bill is wrong should he not also take the blame.

    Kevin Hassey

    22nd June 2011

  6. and when the Defendant takes unsustainable points that serve to waste time and expense is a third party costs order made against the Defendant firm?

    No body is perfect and in a larger Bills then it is inconceivable that there will not be an error / omission of some sort

    There is a difference between a small error and a clear case of fraud. The tinyest error is now seized upon and pursued to the hilt

    Annon

    22nd June 2011

  7. In respect of my case I should add that the Solicitors had mis-certified two schedules for Summary Assessment and the bill followed them. It is a fair assumption that therefore the Draftsman was under orders to mirror the schedules in his bill.

    Ian Cosgrove

    22nd June 2011

  8. In response. Mistakes happen. I have made them in bills and held my hands up as to calculations etc. What I really disapprove of is a Costs Draftsman claiming costs already paid for interlocutory orders which I see a lot and it then being rubber stamped on a signature.

    That is what sets off an assessment in the terms of Ian’s matter.

    As to fraud this was not the purpose of the original article as again in Ian’s matter cock up/conspiracy. My argument in such circumstances if I can see the incompetence and irresponsibility waht is there in there I cannot see for personal attendaces/correspondnece. I would hope we are all very careful before usin gthe fraud worod in pleadings or Court.

    To me it again goes back to the Costs Draftsman. It is his incompetence at the start of the matter to balme

    Kevin Hassey

    22nd June 2011

  9. Surely the purpose of the original article was the solicitors were happy to engage in less than honest activities and as such the signature cannot be relied on as they are less than honest

    to quote

    “This indicates that people who are attracted to law because of its status would also be prepared to commit minor frauds”

    Yes glaring errors are made is my point but they do not amount to fraud and are not a licence to go behind the signature. Defendant’s want 100% accurate Bills and yet then challenge both the time claimed for preparing and checking them

    You cannot have it both ways. You can have an accurate Bill but dont then seek to challenge the time claimed. Time and expense will invariably be increased given the pressures applied to maximise efficiency and turnaround.

    Conversely when trivial mistakes are made don’t be seen to be raising every issue under the sun as if their is a major attempt to defraud going on when only a nominal time for preparing is claimed

    Annon

    22nd June 2011

  10. Thanks for this article Simon. In my experience, and in line with recent discussions (re grade of costs draftsmen), solicitors, as a general rule, are inter alia, conceited, greedy morally questionable….

    Truly Eminent Costs Professional

    22nd June 2011

  11. Only 47 per cent of the public ‘generally trust’ lawyers to tell the truth it is said (http://bit.ly/lgzNEq). I wonder if any of the remaining 53% of the 1,277 people to take part in the survey are lawyers themselves. Mind you, 93.33% of statistics are made up on the spot…

    Jon Williams

    22nd June 2011

  12. Apropos of nothing; the Cost Monkey forum is back up-and-running…

    Anonymous

    22nd June 2011

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