The defendant costs specialists

The cost of legal advice

By on Aug 17, 2011 | 19 comments

For those claimant lawyers who submit reasonable claims for legal costs (God bless both of you) I am sure that it is often hard to understand the apparently irrational rants from defendants about excessive claims for costs. Some will also struggle to understand why Lord Justice Jackson, after extensive investigations, concluded that there was something seriously wrong.

I will therefore give you a small example of the kind of thing that some of us see on a daily basis.

A document schedule to a bill of costs contained the following two entries:

1/10/2010 – Attending the file and applicable information and preparing Schedule of Loss – 24 minutes

18/11/10 – Incorporating additional material into Claimant’s Schedule of Loss and updating the same – 24 minutes

At this point you may think: what’s the big deal? A total of 48 minutes for preparing a schedule of loss is hardly anything to get excited about.

The fee earner was claiming £192 per hour plus a 100% success fee plus VAT at 20%.

Therefore, the total being claimed for preparing this document was £368.64.

To put this into context, the Office for National Statistics lists the median weekly pay for full-time employees in the UK for 2010 as £499. After tax, the take home pay for the average full-time worker is almost exactly the same as was claimed for the preparation of this document.

And what did this document look like that a claimant solicitor is prepared to seek £368.64 for? Have a look: here (click to view or go online if you receive this via email).

I have anonymised the document but frankly I should probably be naming and shaming the solicitors and well known costs firm responsible. It’s not just those looting in the streets who believe in something for nothing…

    19 Comments

  1. Before anonymous gets in , yes some Defendants do make unreasonably low offers. Hopefully it is accepted the worse excesses are firms in the minority of which the costs profession has to take a large share of the blame

    Kevin Hassey

    17th August 2011

  2. I do wish you would cease failing to acknowledge that happens both ways. It would take me all of 2 minutes to find a similar example of very poor time entries in a Defendant’s bill I’ve received.

    It appears that working for only one side of the coin has given the author a skewed view on these things. But then, hey, that’s life in this counrty isn’t it – us v them, left v right, united v city etc etc Cant possibly acknowledge the full picture can we

    Bit irresponsible posting other firms documents, redacted or otherwise, on here as well.

    look forward to the usual witty reply

    Anonymous

    17th August 2011

  3. It is by no means a surpise and certainly happens both ways. I do not think it irresponsible to post the redacted “Schedule of Loss”.

    However, I do think it harsh to criticise the costs draftsman who prepared the bill because it is not his job to assess the costs when preparing the bill but to include in the bill any work which comes within the ambit of the order for costs.

    Just for the record, my work is split about 50% between Claimant and Defendant.

    John Allen

    17th August 2011

  4. One wonders why it take such a long time to press the print key.

    Anon

    17th August 2011

  5. Come on …… The solicitor would have had to trawl through alot of information before preparing this document….

    Truly Eminent Costs Professional

    17th August 2011

  6. Here’s one from a well known Defendant firm:

    18.03.11 Considering procedural position & planning further strategy – 3 hours 48 minutes at £177.00 per hour – total cost £672.60 plus VAT @ 20% = 807.12.

    I can’t imagine their insurer client paying this if asked!

    Former ALCD member

    17th August 2011

  7. Why compare the charge to a weekly wage? The charge incorporates overheads, salary and profit. It is not pocketed by the solicitor as ‘wages.’

    Defendant Solicitor

    17th August 2011

  8. Former ALCD member:

    “Here’s one from a well known Defendant firm:

    18.03.11 Considering procedural position & planning further strategy – 3 hours 48 minutes at £177.00 per hour – total cost £672.60 plus VAT @ 20% = 807.12.”

    This needs putting into context. In some instances this might not be unreasonable.

    Darth Vader

    18th August 2011

  9. The reason for comparing the charge to a weekly wage is because these costs, if they are paid as claimed (as the lawyer obviously hopes for), have to be paid by someone. Who pays?

    Ultimately, the costs get passed on to the average man in the street. Motor insurance costs are paid directly by motorists and indirectly by everybody else through increased costs of goods and services. EL insurance costs are passed on to everybody through increased prices for goods and services. Costs paid by the NHSLA or local authorities are paid by taxpayers.

    The lawyers claiming £368.64 for preparing this document are expecting this cost to be met, ultimately, by the average man in the street. The amount claimed equates to the weekly take-home pay of the average full-time worker. Whether the lawyer gets to “pocket” the full amount is neither here nor there.

    Simon Gibbs

    18th August 2011

  10. Something being overlooked here is the fact that had a Defendant not been negligent in the first place there would be no claim to meet. Is it the average man on the street’s fault that the law is such that alllows these claims as well?

    Anonymous

    18th August 2011

  11. It’s hardly being “overlooked” when it’s entirely irrelevant.

    Patrick

    18th August 2011

  12. and the comparison to a weekly wage is?

    Anonymous

    19th August 2011

  13. Sorry, chaps, I’m slow on this thread!

    I’m guessing, but having worked both Claimant & Defendant sides, I would say it is less the case of what the solicitor is recording, and more of what the draftsman is making up – and I would stress, I havent followed the link, and I dont know the solicitor or draftsman concerned at all (hope it wasnt me, gulp !!)

    I think the point Simon makes is a little bad, as the CPR itself tells us that sometimes the time needed is greater than the gain – CPD 11. Certainly, if a solicitor didnt check the relevant documents before drawing the schedule, or do the schedule right, the Defendant would kick off. But the times claimed, look to me to be a “standard” estimation by the draftsman – and that is where we fall down as a profession.

    Anonymous

    19th August 2011

  14. It is not entirely impossible that the time claimed is reasonable. The wording of the claim may poorly reflect the consideration element of the task, but on the face of it (and I have seen the doc) the time claimed appears to be unreasonably high.

    If the time is in fact unreasonably high I do not believe that a DJ would have much trouble in identifying that this work was unreasonable in amount on any sort of assessment. I strongly suspect that a DJ would not be troubled by CPR 48.8(2)(b)and (c)when disallowing such work.

    The comparison of the level of fees to a wage is good and all, but it’s the same for any mid-level service. I took my car to the dealership a few months ago and they charged me approx £150 to plug in the diagnostic and say ‘it isn’t detecting anything’. Removing success fee, that is a similar fee for less time on the job and no real avenue for dispute of the fee.

    Whether the costs draftman should be estimating the time or going with the solicitors time recording or what not is a good question. When I prepare a bill I do vet the time recorded and the work done. My bills do not include any items that were patently unreasonably incurred and I may self tax items I feel are very high, I work in-house and therefore do not have the business pressure of pleasing/indulging a solicitor client. On the other hand I do identify and claim estimated time where work was done and no time is recovered. You have to be intuitive rather than led along and the longer you do the job (and many have done it much longer than me) the more you get a feel for what is realistic.

    A bill, whether prepared for claimant or defendant, should be limited to those costs that are patently reasonable in nature and amount or fall within the ambit of the DJ’s discretion to allow or disallow.

    Robert Pettitt

    19th August 2011

  15. To me it appears that the time is “standardised” arising from a claims management system (CMS) (i.e. Axxia, ProClaim etc).

    Having once worked in-house for a high volume PI firm using a CMS I can testify that the times are standardised across the firms for most items (i.e initial attendance, dealing with a Schedule of Loss etc) regardless of the actual time incurred, a simple “push button” task and regardless of the grade of fee eraner (thereby destrying the Grade A more/GRade D less efficient argument!).

    I was once put in the invidious position where 3 of my schedules were placed quite by chance to the same Defendant costs draftsman who noticed that the times sought were almost identical regardless that one was Garde C and two were Grade B!

    It would take a braver Defendant cost draftsman (as I now am) than I but really these type of firms need “called out” by way of Part 18 requests to question the practice above I describe and the whole house of cards would fall.

    Wearing a white hat

    19th August 2011

  16. Interesting debate this topic.

    I call for fixed fees across the board. Job done.

    Former ALCD member

    19th August 2011

  17. Yes, as discussed above.

    Patrick

    19th August 2011

  18. We have all seen them on both Claimant and Defendant bills.

    My favourite was around 15 years ago:-

    Trainee solicitor completing Acknowledgement of Service -42 mins

    Assistant solicitor checking A of S – 18 mins

    Partner checking A of S – 06 mins

    To many solicitors/costs draftsmen, if it is on the printout, it goes in the bill.

    John Allen

    20th August 2011

  19. Mr Allen, you do make a good point, but are draftsmen to be the police of what a solicitor records and claims in time?

    If we are, why not do away with the Assessment process and the Courts in consequence?

    Anonymous

    1st September 2011

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