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detailed assessment

Failure to serve electronic bill of costs

By on Dec 10, 2018 | 0 comments

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...

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Interim costs payment following acceptance of Part 36 offer

By on Nov 30, 2018 | 0 comments

I had anticipated that the case of Culliford & Anor v Thorpe [2018] 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 [2016] 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 [2018] 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...

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Timing of payments on account

By on Oct 17, 2018 | 0 comments

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.” and CPR 47.16(1): “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 [2016] 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...

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Second fee earner attending conference

By on Sep 4, 2018 | 7 comments

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...

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Serving an electronic bill of costs

By on Apr 13, 2018 | 4 comments

We now have compulsory electronic bills of costs.  What we do not have are up to date rules relating to service. PD 47 para.5.A4, dealing with transitional provisional provisions, makes it clear that the new electronic bill must itself must be served: “Where a bill of costs otherwise falls within paragraph 5.1(a) but work was done both before and after the Transition Date, a party may serve and file either a paper bill or an electronic bill in respect of work done before that date and must serve and file an electronic bill in respect of work done after that date.” Although the balance of the rules could be much clear, it is clearly the case that this will apply to all bills that are electronic (ie it is the electronic bill itself that must be served). The difficulty that arises is that the Practice Direction 6A, that deals with service generally, is very restrictive when it comes to electronic service. “4.1  Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means – (1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving – (a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and (b) the fax number, e-mail address or other electronic identification to which it must be sent; and (2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) – (a) a fax number set out on the writing paper of the solicitor acting for the party to be served; (b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or (c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.  4.2  Where a party intends to serve a document by electronic means (other than by fax) that party must...

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Filing electronic bill of costs

By on Apr 6, 2018 | 6 comments

The new electronic bill of costs is now upon us and it already causing confusion at the most basic level. Costs Lawyer magazine reports ACL council member Claire Green, who has paid a key role in the development of the new bill and as been running the ACL’s training courses on the new bill, warning: “the new bill will ‘change the whole ethos and environment we’re working in’ and too many people seem unaware of what’s coming – as one small example, you now have to serve the bill on the court at the same time you serve it on the other party.” This would be a surprising development if true. Previously, detailed assessment proceedings were commenced by serving the bill on the paying party.  It was not, at that point, filed with the court.  Points of Dispute were served in response, but not filed.  Optional Replies were then served, but not filed.  It was only if, and when, a request was made to the court for detailed assessment that the various documents (and bill) were filed. It would therefore be odd if the rules had now been changed so that the courts were to be bombarded with 1000’s of bills (both hard copy and electronically) at a stage of the assessment process where they have no involvement or interest and where most matters will settle without the need for any input from the court. The problem is caused by the wording of PD 47 para.5.1A: “Whenever electronic bills are served or filed at the court, they must also be served or filed in hard copy, in a manageable paper format as shown in the pdf version of Precedent S.  A copy of the full electronic spreadsheet version must at the same time be provided to the paying party and filed at the court by e-mail or other electronic means.” The first sentence appears tolerably clear: When an electronic bill is served it must be served both electronically and in hard copy; and When an electronic bill is filed it must be filed both electronically and in hard copy. The second sentence is a clear as mud and is clearly the cause of the confusion. I believe the correct...

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