PD 47 para.5.1 requires an electronic bill of costs for any work undertaken after 6 April 2018 where the claim is a Part 7 multi-track claim.
The Practice Direction contains no sanction for failing to comply with this requirement.
CPR 44.11 provides:
“(1) The court may make an order under this rule where –
(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order;
(2) Where paragraph (1) applies, the court may –
(a) disallow all or part of the costs which are being assessed”
There appear to be a number options open to the Court where there is a failure to comply with PD 47 para.5.1, including:
- Tutting and proceeding with the assessment regardless.
- Refusing to proceed with the assessment until a compliant electronic bill (and amended paper bill) is served/filed.
- Making an unless order requiring a compliant electronic bill (and amended paper bill) to be served/filed by a certain date failing which all costs will be disallowed.
- Disallowing any post-6 April 2018 work (which may not be straightforward where the bill does not clearly identity all such work).
- Making a percentage reduction to the bill (perhaps roughly reflecting the proportion of post-6 April 2018 work claimed).
- Disallowing all costs.
I had anticipated that the case of Culliford & Anor v Thorpe  EWHC 2532 (Ch) would be the last word we would hear on the subject of interim payments for costs. In that case the court had to decide whether it had the power to order an interim costs payment after the original costs order had been made. The judge concluded:
“In my judgment, it is not the law that, once an order for costs has been made, drawn up and sealed, no further application can be made to the court for an order for a payment of a sum on account of those costs. There is nothing in the rules which so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made. My decision in Ashman v Thomas  EWHC 1810 (Ch) does not decide to the contrary. It was a case where the court was asked to revisit its order before it had been drawn up and entered. So it turned on the so-called Barrell jurisdiction. There was no need to decide what would have happened if the order had already been entered. Although CPR 44.2(8) contemplates that the court will decide this question at the time of making the order for costs, to my mind this does not exclude the possibility that the court should decide it later. I see no justification in the rules or authorities for the Claimants’ view that, if an application is not made at the time, the next opportunity arises only after detailed assessment proceedings have been commenced.”
However, barely had the ink dried on that judgment before another decision on this topic has been reported (although the case was actually heard several months before Culliford).
In Finnegan v Frank Spiers  EWHC 3064 (Ch) the High Court ruled that the court has no power to order a payment of costs on account after a Part 36 offer has been accepted. This is because Part 36 is a self-contained code and it makes no provision for payments on account following acceptance of a Part 36 offer.
We now have two different principles governing interim payments on account:
- Where the court makes an order for costs it may at the same time, or at any point subsequently, order a payment on account of those costs (pursuant to Culliford).
- Where the order for costs is a deemed costs order following acceptance of a Part 36 offer, the court has no power to order a payment on account (pursuant to Finnegan).
The judgment in Finnegan reveals a strange route by which the matter came to appeal, which is not commented upon (and I have seen no subsequent comment on this point elsewhere).
The case concerned a Part 36 offer accepted on 23 March 2017.
In early June 2017 the Claimant issued the application for an interim payment on account.
It was not until 8 August 2017 that the Claimant finally commenced detailed assessment proceedings (out of time).
The application came before a District Judge, on a date not given within the judgment, where the judge concluded there was no jurisdiction to order an interim payment on account. The judge commented that by this stage: “the claimant has requested a provisional assessment”.
Permission to appeal that decision was given on 13 March 2018 and was heard on 27 June 2018.
All of this was unnecessary and misconceived. By the time of the hearing before the District Judge, a request had been made for a provisional assessment. There was therefore a clear right to request an interim costs certificate under CPR 47.16 (as opposed to an interim payment on account under CPR 44.2(8)). Having said that, Cook on Costs 2018 notes: “The laudable aim of provisional assessments is that they will be completed within six weeks of the request for detailed assessment. It is unlikely that courts will entertain interim costs certificate applications if the delay in getting a provisionally assessed bill is well under two months”. But, by the same logic, one must wonder why the courts would have entertained an application for an interim payment on account for a provisional assessment matter. Again, as per Cook on Costs 2018: “There are good policy reasons for requiring parties to get on with the detailed assessment proceedings in accordance with Part 47 rather than making interim applications to the court”.
Then again, we are presumably taking about a Bill of Costs valued at under £75,000. In this case, the Defendant had apparently already made a voluntary interim payment of £30,000. The application that was issued sought a (presumably further) £19,000. This was a lot of satellite litigation over not very much.
The SCCO has published the updated Senior Courts Costs Office Guide 2018. This is the first update since 2013.
It provides a helpful summary of a number of procedural points. It also provides a useful list of the current Regional Costs Judges.
The decision of Mr Justice Walker in Page v RGC Restaurants Ltd  EWHC 2688 (QB) provides further important guidance on the costs budgeting process and is essential reading for those involved in costs budgeting.
The underlying case was subject to costs budgeting. The parties decided between themselves, without consulting the Court, that the budgets could be prepared on the basis that it was too soon to budget for trial preparation and trial costs. The Claimant’s budget therefore included nothing for these phases.
The main rule in issue was CPR 3.14:
“Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.”
At the CCMC, the master concluded that the failure to serve a budget that included trial preparation and trial estimates amounted to a failure to file a budget that complied with the rules. He decided that the consequence of this was that the CPR 3.14 sanction applied and made a costs management order limiting the Claimant’s budget accordingly (ie court fees only).
On appeal, the master’s decision that there had been a failure to file a compliant budget was upheld. However, the appeal judge ruled that the master should have gone on to consider whether to disapply the sanction (even in the absence of an application for relief from sanctions) as CPR 3.14 specially provides that the sanction applies “unless the court otherwise orders”. The judge then applied the Denton principles to the issue of whether the court should have otherwise ordered and did so to the extent that the sanction would not be applied to those phases of the budget that had been properly completed and agreed by the Defendant. However, the sanction would continue to apply in relation to the trial preparation and trial phases. Given the matter had been listed for a five day trial, this represents a very serious sanction and is likely to cause a major loss to the Claimant’s solicitors (or possibly professional indemnity insurers) if the matter proceeds to trial.
The obvious lesson from this decision is that it is not for parties to decide not to file complete budgets taking the matter up to trial. PD 3E para.6(a) provides that: “In substantial cases, the court may direct that budgets be limited initially to part only of the proceedings and subsequently extended to cover the whole proceedings”. Any party wishing to budget for only part of the case therefore needs to make an application to the court in advance of the deadline for filing budgets.
The judgment itself is lengthy and deals with a large number of different grounds of appeal, not making it entirely easy to extract the key points. Nevertheless, a number of important principles are dealt with.
The moment at which the sanction bites was dealt with as follows:
“It was submitted on behalf of [the Claimant] that the operation of CPR 3.14 was not automatic. I disagree. CPR 3.8 makes it plain that the operation of a sanction such as that in CPR 3.14 is not dependent upon there being any further order by the court. On the contrary, the sanction applies unless the court otherwise orders. The natural meaning of this provision is that once there has been a relevant failure, then in the absence of any contemporaneous or earlier order to the contrary, CPR 3.14 bites. From that time on, unless and until there is an order by the court to the contrary, the party in question is deemed to have filed a budget comprising only the applicable court fees. Whether that continues to be the case for the purposes of costs budgeting is a matter for the court.”
At the original hearing, the Claimant had not made an application (even if only oral) for relief from sanctions. Nevertheless, as mentioned above, it was recognised that the wording of CPR 3.14 required the master to consider whether to disapply the sanction:
“in circumstances where CPR 3.14 expressly states that the sanction is to apply unless ‘the court otherwise orders’ it would be entirely appropriate for the court to pause, and canvas with the parties whether there is any reason for the court to make a different order.”
It was recognised that there is a distinction between an application for relief from sanctions and consideration of whether to disapply CPR 3.14:
“The vital difference is that on an application under CPR 3.9 the starting point is that the sanction has been properly imposed and complies with the overriding objective … . By contrast, while the factors calling for consideration when deciding on disapplication under CPR 3.14 are similar to those which arise on an application for relief under CPR 3.9, the context is very different. When considering disapplication there has been no prior judicial decision that the sanction was appropriate and in accordance with the overriding objective. Thus a significant fetter on the court’s ability to grant relief does not apply to consideration by the court of whether the sanction under CPR 3.14 should be disapplied using the express power to do so in CPR 3.14.”
Nevertheless, it was common ground that the Denton approach would apply to consideration of whether to exercise the discretion to disapply the sanction, in the same way as it would in relation to an application for relief from sanctions. This follows the Court of Appeal’s decision in Mitchell v News Group Newspapers Ltd:
“We should add that in our view the considerations to which the court should have regard when deciding whether it should ‘otherwise order’ are likely to be the same as those which are relevant to a decision whether to grant relief under CPR 3.9.”
From these various passages, I take the following:
- The CPR 3.14 sanction bites at the point of the breach.
- At a subsequent costs management hearing, the judge must consider whether to disapply the sanction even in the absence of an application for relief from sanctions.
- The court will adopt the Denton approach to whether to disapply the sanction but will not take as a starting point a presumption that the sanction was properly applied.
The distinction between whether the sanction bites automatically, but may then be disapplied by the judge at the costs management hearing, or whether it only bites if the judge so orders (as a result of deciding not to “otherwise order”) may seem academic. However, the distinction may prove crucial. It is not uncommon for budgets to be filed and exchanged but then, often because of extraordinary delay in the matter coming before the Court for a costs management hearing (because the courts often adjourn this issue until a date after the original CMC), for the matter to settle before a judge would have been in a position to “otherwise order”. If the filed budget was defective, it would be a brave party who sought to rely on a judge on detailed assessment deciding he had the power, or inclination, to “otherwise order”.
A further issue that was explored was how significant the defect in the budget needed to be before it would be treated as a failure to file any budget.
PD 3E para.6 states:
“(a) Unless the court otherwise orders, a budget must be in the form of Precedent H [emphasis added] annexed to this Practice Direction. It must be in landscape format with an easily legible typeface. In substantial cases, the court may direct that budgets be limited initially to part only of the proceedings and subsequently extended to cover the whole proceedings. A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.
(b) Parties must follow the Precedent H Guidance Note in all respects [emphasis added]”
Here, the budget filed by the Claimant was held to be clearly defective:
“there can be no doubt that the obligation under CPR 3.13 as amplified in PD 3E is, unless the court otherwise orders, to file a budget ‘in the form of Precedent H’, and which follows the Precedent H Guidance Note in all respects. Paragraph 6 of PD 3E says so …. In the present case it is clear that Mr Page’s interim budget did not meet important requirements of Precedent H. Precedent H required Mr Page to set out his budgeted costs for trial preparation and for trial. Mr Page’s interim budget did not do this.”
This appears to imply that the budget must virtually mirror Precedent H and the Guidance Notes.
On the other hand:
“CPR 3.14 will only apply to [the Claimant] if he ‘failed to file a budget’. [The Claimant’s] first contention is that, on an ordinary use of language, he had filed a ‘budget’. In this context, [the Defendant] accepted that a mere irregularity would not nullify what would otherwise be a costs budget. I agree. It seems to me that [the Defendant’s] approach in this regard is consistent with the decision of Stuart-Smith J in Americhem Europe Ltd v Rakem Ltd  EWHC 1881 (TCC). There a solicitor had served and filed a costs budget in the form of Precedent H in time, but it was signed by a costs draftsman and not by a senior legal representative within the meaning of PD 3E. Stuart-Smith J found that while this was contrary to PD 3E, there was nothing to impede the normal constructive discussions on figures. In those circumstances what went wrong in that case was entirely different in nature from the present case, where what was filed omitted important sections of Precedent H.”
Naturally, it will be fact sensitive as to whether a breach is “a mere irregularity” or a failure to “meet important requirements”.
Expect more litigation on this issue.
The Legal Costs Blog keeps being pulled back to the issue of the timing of orders for interim payments of costs between the parties.The current wording of the relevant rules is to be found at CPR 44.2(8):
“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”
“The court may at any time after the receiving party has filed a request for a detailed assessment hearing –
(a) issue an interim costs certificate for such sum as it considers appropriate; or
(b) amend or cancel an interim certificate.”
This distinction between an order for a payment on account and an interim costs certificate has been around (with only minor variations) since the introduction of the Civil Procedure Rules. It is therefore surprising that the extent of any tension between the two rules, if such exists, has remained unresolved for so long.
I had always read the two rules to mean there were two stages at which such an order could be made:
1. At the same time an order for costs is being made (usually following a trial).
2. After a request has been filed for a detailed assessment hearing.
If an order for a payment on account had not been made when the costs order was being made, the next opportunity to obtain an order for an interim payment would not arise until after a request for a detailed assessment hearing had been made. This has been the view shared by the authors of Cook on Costs.
The last time we looked at this issue was in the case of Ashman v Thomas  EWHC 1810 (Ch) (19 July 2016).
Chancery Master Matthews had given judgment and awarded costs to the defendant but not made an order for an interim payment. Subsequently, when trying to agree the terms of the order, the parties fell out over an attempt by the defendant to include a term for a payment on account of costs, which the claimant objected to. The matter was referred back to the Master for a decision to be made on written submissions.
The Master held he had the power make an order for an interim payment because the court retains power to alter its judgment or order at any time until it is entered and perfected by sealing, and so ordered an interim payment to be made.
At the time I commented that the “decision rather evades the issue. The Master did not expressly decide that no general power existed to make an order under CPR 44.2(8) at any stage. Rather, he decided that he had the power to ‘alter’ his order, prior to it being entered and sealed, to include provision for an interim payment. Nevertheless, it is clearly implicit in his decision that this route was only open to him because the final order had not been entered and sealed. Otherwise, the defendant would have had to wait until after filing a request for a detailed assessment hearing”.
It is therefore interesting that this very same issue returned to the same judge, sitting as a High Court judge, in Culliford & Anor v Thorpe  EWHC 2532 (Ch) where he was forced to make a direct decision on whether the Court has the power to order an interim costs payment after the original costs order had been made. He concluded:
“In my judgment, it is not the law that, once an order for costs has been made, drawn up and sealed, no further application can be made to the court for an order for a payment of a sum on account of those costs. There is nothing in the rules which so requires, and there may be good reason why payment of the sum on account is not considered at the time the order was made. My decision in Ashman v Thomas  EWHC 1810 (Ch) does not decide to the contrary. It was a case where the court was asked to revisit its order before it had been drawn up and entered. So it turned on the so-called Barrell jurisdiction. There was no need to decide what would have happened if the order had already been entered. Although r 44.2(8) contemplates that the court will decide this question at the time of making the order for costs, to my mind this does not exclude the possibility that the court should decide it later. I see no justification in the rules or authorities for the Claimants’ view that, if an application is not made at the time, the next opportunity arises only after detailed assessment proceedings have been commenced.”
We now have, over 19 years since these rules were introduced, a binding authority on the power these rules confer. We will no doubt have to wait a similar period before any meaningful guidance is given on the issue of proportionality.It also means:
1. Cook on Costs‘s traditional interpretation of these provisions has been consistently wrong (although the 2018 edition recognises there have been “conflicting first instance decisions on this point”).
2. CPR 47.16(1) is a redundant provision.
Of the various costs building wheezes that some claimant firms engage in, having a second (or third) junior fee earner attend conferences with Counsel, to take notes, is one of the classics.
When this issue arises at detailed assessment, I know at least one costs judge who confirms that, when he was a practising solicitor, he would often have a trainee solicitor attend conferences to take notes but would not dream of charging for this work as it was primarily for the benefit of the trainee as part of their training process. It was not chargeable work.
The usual justification advanced by claimant solicitors for having the junior fee earner attend to take a note is that this enables the main fee earner to properly engage in the conference itself. This is predicated on the notion that a Grade A fee earner cannot be expected to both follow what is going on in the conference and also make a note of what is being said. This, of course, is usually in the context of conferences that are largely Counsel led. This argument tends to be rather undermined when it is being made to a costs judge at detailed assessment who is managing to keep a detailed contemporaneous note of the submissions being made, asking probing questions of the advocates as the matter progresses and able to make comprehensive ex tempore judgements on complex points of law at the drop of a hat. But then, you cannot expect fee earners claiming up to £450 an hour to be able to walk and chew gum at the same time.
If only the problem stopped there.
I have had two recent cases where the time claimed by the junior fee earner writing up a note of the conference, in addition to the time claimed in attendance, massively exceeded the length of the conference itself.
In one, a total of 3 hours 30 minutes was claimed drafting the note of a conference that only lasted 1 hour 12 minutes.
In the other, a total of 6 hours was claimed by two fee earners preparing a conference attendance note of a conference that only lasted 3 hours 36 minutes.
Unless the time is being claimed for typing-out verbatim, with two fingers, everything that was said at the conference, how is it possible for more time to be spent on the note than was spent at the conference itself?
At what stage in the evolution of the modern law firm did solicitors first come to believe it was acceptable to advance such claims?
The first problem with the vanity legal awards industry is that they are often ridiculously wide in the nature of the awards they seek to distribute, to the extent to which the awards are meaningless (even if they were distributed on merit).
For example, Wealth & Finance INTL magazine previously awarded Gibbs Wyatt Stone ‘Most Outstanding Law Firm of 2016, the UK’. I would not argue with the outstanding nature of the work we undertake but modesty does call even me to question whether a niche costs firm can ever seriously be considered the best law firm in the whole country (even if only for 2016).
Alternatively, they give “awards” that are not remotely appropriate to the firm in question (eg we have been offered “Asset Manager of the Year – North America”). You might think they would take a little more trouble to find out what kind of a firm they are contacting before sending the email out.
Fair play then to Acquisition International magazine for awarding Gibbs Wyatt Stone ‘Most Outstanding Legal Costs Litigation Firm 2018 – London’. This at least shows they have the sense to consider the nature of the work undertaken by the firm before sending out a targeted email. I am not sure it is sufficient to persuade me to sign up to one of their packages to promote winning this “prestigious” award, such as:
The Exclusive Package – 1,450 GBP – (Limited spaces available)
– Supporting image and headline on the front cover of the magazine
– A 4-page editorial inclusion in the first 20 pages
– 3 hard copies of the edition your inclusion appears in
– Your inclusion replicated on the homepage of our website
– Your inclusion in the monthly newsletter, for 3 months
– A 3-month web banner
– 3 bespoke crystal trophies
– A personalized digital logo for use in your own marketing
– High-resolution PDF copies of your inclusion
These online only magazines are clearly not read by anybody (other than other reward recipients wanting to read their own self-written glowing testimonials).
It is clear from the contents of this magazine, by way of example only, that there are legal and financial firms across the globe prepared to part with good money for these meaningless vanity awards whose sole purpose, presumably, is to persuade potential clients that these are a mark of quality. How depressing.
In a speech given earlier in the year, Lord Justice Jackson recognised that the profession was becoming “impatient” for guidance on the proportionality test from the Court of Appeal. He concluded:
“The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.”
In May v Wavell Group Plc, an appeal at County Court level, a judge reached the questionable conclusion that the wording of the rule that reads:
“Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”
should be interpreted to mean (I paraphrase here):
“Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred but not by a very substantial amount”
Unsurprisingly, permission was sought to appeal this to the Court of Appeal.
The Court of Appeal refused permission.
You couldn’t make it up.
Hailsham Chambers has reported on the Court of Appeal decision in the appeal of Hislop v Perde  EWCA Civ 1726.
This concerns the correct approach where a defendant accepts a claimant’s Part 36 offer after expiry of the 21 day period. Many claimants have argued that the claimant should be entitled to recover indemnity costs from the expiry of the relevant period, just as they would if the case had gone to trial and the same result had been achieved. This argument has been particularly attractive to claimants where fixed costs apply, as an order for indemnity costs will allow the claimant to recover more than fixed costs.
The Court of Appeal has now decided in that there is no presumption in favour of indemnity costs on late acceptance of a claimant’s Part 36 offer; and (b) that where this occurs in fixed costs cases the recoverable costs are those defined by section IIIA of Part 45, and the general jurisdiction as to costs in CPR36.13 has no role to play, meaning there is no place for assessed costs.
The only way out of the fixed costs regime in such a case is to argue under Part 45.29J that there are exceptional circumstances making it appropriate for the Claimant to recover more than fixed costs. The judge was, however clear that late acceptance of a Part 36 offer should not create a presumption that exceptional circumstances were present: A long delay with no explanation may well be sufficient to trigger r.45.29J; a short delay with a reasonable explanation will not.
The Senior Costs Judge Master Gordon-Saker prefaced his recent decision on proportionality, in Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd  EWHC B13 (Costs), with the warning:
“this judgment should not be taken as any attempt at providing guidance. I say that because I know that anything said about proportionality, at whatever judicial level, is subjected to anxious scrutiny. First this is not a judgment of the Court of Appeal. Secondly the circumstances which give rise to this judgment are very unusual.”
That said, the decision does highlight one aspect of the proportionality test that merits consideration.
Of the various factors the Court must take into account when considering proportionality is:
“any additional work generated by the conduct of the paying party”
The Master summarised his conclusions as follows:
“62. Contrary to the Claimants’ submission, it seems to me that the conduct relied on must be conduct in the litigation rather than the conduct which gave rise to the cause of action. The conduct which caused the wrong will be compensated in damages or other relief. In my view the purpose of r.44.3(5)(d) is to enable the court to take into account that the costs may have been increased because work which would not ordinarily have been required has been required by the way in which the opponent has fought the claim.
63. It also seems to me that the conduct relied on does not need to be misconduct. Had that been intended misconduct could easily have been substituted in the rule for conduct.
64. In the event in my judgment there was no additional work caused by the conduct of the Defendant. That the Defendant chose to deny liability until 6 months before trial did not cause additional work. It caused the claim and the work involved in the claim. If a failure to concede by the party who eventually loses is considered of itself to cause additional work, this factor would apply in every case which did not settle within the relevant pre-action protocol period.
65. The Defendant fought these claims vigorously and did not concede liability at the earliest opportunity. As a consequence it will have to pay a greater sum in costs than if it had not fought the claims so vigorously or had conceded liability earlier. However I am not persuaded that this stance or the matters listed in the Claimant’s written submissions caused additional work in relation to the individual claims.”
(This decision appears to be broadly consistent with the approach taken by Master Rowley in May & Anor v Wavell Group Plc & Anor  EWHC B16 (Costs) at paragraphs 20-24.)
This is an important issue and one where the wording of the rule is not very helpful. The Master is correct that the rule does not use the word “misconduct” and it would be wrong to place so high a test on the provision. On the other hand, “conduct” is, on the face of it, broad enough to cover anything the paying party does; which would include, for example, disputing liability. (It is not, for example, worded as “unreasonable or improper conduct” as per CPR 44.11(1)(b)). However, the Master here treated that as being too low a test.
The Master appears to have interpreted the rule as being designed to catch matters that fall somewhere between the inevitable costs that need to be incurred in light of the fact an opponent has brought/defended the claim and actual misconduct (although additional work caused by misconduct would also clearly be caught by the rule). Presumably this “additional work” would cover such issues as work generated by delay in a party complying with orders, unnecessarily long or irrelevant witness statements being served by the other side or the wasted costs of experts due to a failure to attend medical appointments.
It will be interesting to see if this approach is followed by the higher courts.