Legal Cost Specialists

Kitchen sink bills

I recently drafted Points of Dispute that contained the following dispute:

“It is noted that work is claimed relating to funding (eg items 7 and entries on 13/9/11 (fourth) under documents) despite clear Court of Appeal authority from 2011 (see paragraphs 108, 114 and 145 of Motto v Trafigura Ltd [2011] EWCA Civ 1150) that such work is not recoverable. It is clear that the fee earner/s responsible for drafting the Bill and checking the same are not aware of the distinction between recoverable and irrecoverable work and it is anticipated that non-chargeable routine communications with the Claimant have been included. The Defendant, adopting a broad-brush approach, offers 80% of the routine communications claimed (ie 20 routine communications). If the same is not accepted the Court will be asked to determine the recoverability of each and every item claimed and the Defendant will request that the cost of this task be paid by the Claimant in any event.”

When Replies were served, out of time, they contained the following response:

“The Claimant is surprised by the dispute raised which illustrates that the Defendant’s fee earner responsible for preparing the Points of Dispute are not aware of the methodology applied in costs proceedings. The funding costs can be included within any Bill of Costs as they have been properly incurred. We have now conceded the said items rendering them irrecoverable.

Does the Defendant seriously suggest that all Bill of Costs that suffer a reduction have been improperly drawn through a lack of awareness?”

Now, the statement that these costs were rendered irrecoverable as a result of the concession in the Replies is clearly poppycock. They are irrecoverable because that is what the law is (as clarified by the Court of Appeal). Such costs were irrecoverable before, during and after the Bill, Points of Dispute and Replies were prepared.

However, ignorance of how the law operates aside, this shows why costs is an area of the law that has fallen into such disrepute. If this work had been included within the Bill as a result of ignorance of the relevant case law, that would be unfortunate but no worse. Instead this is a perfect of example of parties including work they know to be irrecoverable in the hope the other side does not pick up on this.

Murray Heining, Chairman of the Association of Costs Lawyers, recently commented on this issue and repeated the comments of Dyson LJ (as he then was) in Buxton v Mills-Owens [2010] 1 WLR 1997:

“[the solicitors] were under a professional duty not to include in the court documents that they drafted any contention which they did not consider to be properly arguable and not to instruct counsel to advance contentions which they did not consider to be properly arguable.”

15 thoughts on “Kitchen sink bills”

  1. speaking as a claimant there really is no excuse

    sometimes there is an apportionment issue when the time is mixed but if it is funding alone then it simply shouldnt be there

    It undermines the credability of the other costs claimed

  2. No doubt the opponent would have sought recovery of such costs in a default costs certificate had Points of Dispute not been served in time.

    Personally I’m glad when I see such costs being sought because it is easily disputed and casts doubt on the rest of the opponent’s bill (much like Simon pointed out).

  3. This works both ways. As a Claimant I see lots of PODs that dispute the principle recovery of work (not the quantum of it) despite clear authority that in principle the item is a reasonable Inter-partes claim.

    This is often the result of cut and paste PODs and makes my job easier in the Replies since it undermines the other, perhaps argueable, issues.

    Lesson for both sides: Be professional and have some integrity.

  4. Let’s not forget that it is the Solicitor that signs off the bill. The C/D has to follow orders and if he is told to put funding work in, it has to go in. I had a case the other day where I excluded funding work and non-fee earning work (running to court etc lodging documents) and when I got the bill back, the fee earner had put it back in. It doesn’t mean that I was gilding the lily, just doing as instructed. That said, the replies in Simon’s case were a bit daft. Probably one of the same crowd that are refusing to grant extensions of time at the moment.

  5. @ticklemenbills

    Why do you presuppose it is the cd refusing to grant time extensions?? They work on client instruction, unlike most defendants with their “delegated authority” – usually it’s only delegated when it suits them however!

    Further, why do you presuppose you have any entitlement to a time extension anyway? If you’ve made a sensible offer and indicated you are willing to negotiate and make payment on account, then yes, a time extension request is sensible. Most requests I see are from defendants whom have left it to the last minute, chuck a stupid offer on the table and expect a claimant to be delighted to delay the process further – and invariably get nasty when the answer is no. One particular chap I know, has openly threatened he will make a lower offer if he didn’t get an extension – he’s been politely told do so, his client will pay the DA costs consequent

    And all this is before we get the defendants then arguing over DA costs they cause by their action!!

    The problem with Simons objection, is that despite correctly identifying only 2 funding items in the document section, he then tries it on by taking 20% off routine communications. It’s is extremely rare, that anything more than 1 or at most 2 communications relate to funding, and they are usually bound up with other essential client information anyway.

    So yes, point out the obvious, but don’t then attempt to take the mickey! Save it for conduct arguments on DA

  6. Sorry, but the dispute could be clearer. Are you offering 80% of 20 routine communications claimed or are you offering 20 against 25 claimed?

    Either way, it is unlikely that 4 or 5 items relate to setting up the CFA and ATE, as per the definition of “funding” in Motto para 104.

    Typical Defendant low-ball offer.

  7. I know that this is totally unrelated but I am just seeking thoughts.

    I have a matter where my client transferred their file to another firm of Solicitors to undertake to protect their lien pre-issue. My client obtained the Medical Report, GP Records and an Engineer’s Report and the Defendant’s Insurers placed a valuation on general damages before the transfer. The other firm then proceeded to settle the file some six months later.

    There is now a dispute between my client and the other firm as to how the fixed recoverable costs should be apportioned and it has so far proven impossible to reach a compromise.

    Any thoughts as to how we could settle the issue? It has been suggested that we issue Part 7 for breach of contract, however I am more of the view that I would like each of the firms costs to be assessed.

    Part 8 cannot be issued as the Defendant has paid and we do not hold an ‘entitlement to costs’ as such against the other firm so how would you go about having the costs assessed?

    I suspect that the same applies for Summary Assessment as we do not have a claim number.

    Apologies, but this is the first time that I have come across this.

  8. @anon 3.26pm

    Back to remembering basics.

    It’s the lay clients costs

    He has to pay both solicitors, subject to any restrictions they agreed in their recovery

    You can’t assess the costs argument between the solicitors. They have no contractual doesn’t matter what the CPR restricts the defendant to pay

    The only way forward is to have solicitors act proceedings issued for non payment that way. Client loses but it’s his fault for changing solicitors!

    Easiest way is a pro rata split based on an assessment of reasonable work done, but if the solicitors can’t agree between themselves, then contractually the only way is solicitors act. I’ve found telling solicitors this resolves it as they won’t want to sue own client

  9. anyone else noticed the sudden surge in drafting firms offering to act for private clients whom have had deductions from their damages or want to challenge their solicitors bills….

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