Legal Cost Specialists

Drafting time

Further to my post yesterday, the time claimed for drafting the three virtually identical Notices of Funding was a total of three hours (one hour for each). Did you guess correctly?

Being charitable, I suppose it is possible the fee earner recorded the time as being 1 unit per notice. An inexperienced costs draftsman then misread the corresponding attendance notes as recording 1 hour per notice and failed to engage brain when drafting the bill to consider whether this was remotely realistic. The matter was then passed to a partner who was too busy to give even a cursory glance at the contents of the bill before signing the certificate of accuracy. At no stage was there ever any intention to defraud the defendant.

Other possible explanations are also available.

17 thoughts on “Drafting time”

  1. I'm just 'Form H'appy

    Despicable behaviour by someone…. I wonder who?

    However, is this any worse than the ‘opening gambit’ offers we see from Defendant firms of 50%, 40% even 30% of the bill, who then incredibly double their offer when presented with the need to draft Points?

  2. just had a conversation with an in-house Claimant draftsman, whom informed us they “had already taken a percentage off their fees and so were not inclined to reduce any further”. We pointed out the costs claim was grossly inflated to start with (3.8 hours to open a RTA file??) and if this is the time it took them, then they must operate at a colossal loss on Portal cases. Subsequent email offer from them, massive reduction to just a few hundred above what we maintained from the start.

  3. This is nothing but fraud giving draftsmen a bad name, I have seen some examples of why you should only get real draftsmen to prepare bills but this one takes the biscuit. Maybe the guy who guessed it right prepared it!

    I saw something today about rights of audience and the possibility of costs lawyers becoming Q.C’s an interesting idea (Simon this should be your next blog topic), however surely we need to clean up our own back yard before we try and sell the house?

    Hows about only accredited/qualified should be allowed to prepare bills for service? (oohhh i can can forsee this may get alot of people’s backs up, all you costs software whizzkids who prepare bills without understanding what’s going on …… get typing).

  4. I'm just 'Form H'appy

    Take that man’s can opener away or we’ll not be able to walk for worms!!!

    However, as far as the accreditation goes, can I assume that you would support a similar position with regards to the preparation of documents in the substantive claim? (Or is costs a special area where more experience is necessary?)

    Can I assume therefore that you would offer a Grade C rate minimum throughout the bills you receive? As well as for all cost drafting time? I could get behind this logic, just how much is the ACL course now?

  5. Charles Wheatcroft

    I gave up doing P.I. bills years ago as I couldn’t bear the necessity to start high in order to recover a reasonable amount.

    In my rookie years I made the mistake of drawing a completely straight bill. The costs negotiating firm explained that they couldn’t accept a reduction of “only £300” as they would not make any money. The bill was for less than £2.5k (they offered one third). Had I inflated the bill to £5k I probably could have got more than the amount I was asking for and in less time. I declined to do any more bills after this as I had plenty of other types of work.

    It seems to me that if the Claimant inflates their costs by 100% and the Defendant reduces the costs by 35% everyone is happy – even though the Defendant is paying more than they would have done had each party been (a) honest and (b) reasonable.

    I know it is a chicken/egg or cart/horse situation but it doesn’t matter who started it first – how do we end it?

  6. @ MrJustformH , can of worms indeed, but surely most people agree that costs draftsmen tend to have a bad reputation with Judges, only well known costs draftsmen get the nod of approval in my experience, most Judges prefer Counsel (in defence of Costs Draftsmen, I am yet to come across a Costs barrister who knows the inner workings of a file and what is required to actually physically prepare a bill of costs). Although I am sure there are some out there. Perhaps this is not important anymore because as I have said, the software now does it for you, I hear of firms preparing bills with no physical file at all (scary stuff).

    Re: Preparation of docs in a substantiave claim, I’ll reserve my views on that, my concern is only for costs draftsmen! There are enough costs firms out there who by some miracle are able to name and seek costs for 3 or 4 different fee earners, when one fee earner has done all of the work (In my day we labelled this imaginary WIP).

    @charleswheat…. thanks for the response, I get where you are coming from, but the provisional assessment threshold will only increase in time, if Judges persistently see reasonable bills with your name (or your firms name all over it) then you can start to get their confidence at local level? Perhaps even in time you can have a degree of certainty with outcomes? Inflating your bills will only cause more problems in the long run. Maybe we should focus a little on ethics amongst ourselves, if a solicitor client asked you to purposely inflate a bill, the answer is simple don’t do it, refer them to one of the idiots who claims an hour for preparing a notice of funding.

  7. @callsaul No I most certainly did not prepare it, but rather assumed from the question that the time was the same figure on each of the 3 claims. I recalled the highest single claim I have seen for an N251 i.e. 1 hour and so multiplied it by the number of claims.

  8. @callsaul your idea of “accreditation” is one the ACL tried several times (as a “reserved activity”), although were refused as I recall; perhaps their not so clever idea that their members could then employ mere “draftsmen” do draw the actual bills undermined them?

    I’m unsure how you make the leap to fraud, but as to “real draftsmen” only preparing bills, a question; your solicitors file specifically states the time recorded by the fee earner for the activity. Irrespective of how stupid you feel the time claim is, as a “real draftsman” do you just ignore the recording? And if you do, what when say the same file records a “low” time you also disagree with, do you ignore that too?

    Personally, I would be telling my client their time recording is rubbish (and ditching the client if they didn’t take the advice sensibly), but I certainly would not be playing God as many of the self righteous here appear wont to do

  9. @ annonymous, I didnt make post my comments suggesting that self reform would not be met with challenges/problems, perhaps my idea is a duff one after all? but any ideas people have should be put out there in order to generate thought and change, I note that you don’t really put forward any of your own but prefer to pour scourn on mine. Lets just stay as we are eh? 80% of us unemployed within 3 years?

    it isnt about playing god, if you are going to be the advocate in attendance, it is you who will get a tongue lashing off the costs judge for trying it on (depending on your Court), its your name/face he/she will remember for making it up. If you are one of these draftsmen that hides behind Counsel then this post was definately aimed at you.

    If you are a responsible costs lawyer then you should be speaking to your client about their interal processes anyway, im just trying to generate discussion about ethics because they are lacking, if you claim for a 6 month injury when in fact your symptoms resolved within a week is that fraud? so if you claim 3 hours for something that took a secretary 2 minutes to generate why isn’t that? I am not one of these people who is afraid of using the word. But anyway if you need some help 118 118 callsaul.

  10. @callsaul
    I’m not sure the link your name takes you to, or your attempt at advertising, has anything remotely to do with UK Law, but it remains the accepted principle here at least, a solicitor records what he does, a draftsman produces that in a bill (and if they have sense advises their solicitors on it), and the court assesses it. If you call fraud (not saul) every time that happens, on your head be it

    Nobody poured scorn on your “idea”, merely pointed out it wasn’t yours, and had failed already. There are plenty alternatives to the present system, regrettably the present system is too jealously guarded by those with vested interests

    Personally, I think Northern Monkey has hit on the correct answer, I’m just trying now to puzzle out why the solicitor recorded his time as One Direction…..

  11. @Anonymous, thanks for your response, dissapointed you still don’t bring anything to the table but hey, not many “draftsmen” do nowadays. Having done some costs type work in the US you would be surprised how much more smoothly their system runs in comparson to ours. You appear to have missed the point but hey I expected that from the content of your first response, stay as you are!

    Just because a previous attempt has failed (not within my knowledge) does that mean we give up on implementing better ethics? One of underlying principles of UK Law is that people are often to fight for their cause, ask the families and friends of those affected by Hillsborough, ask those who are currently campaigning for public funding in family cases after the LASPO “carpet sweep” left many not even able to get representation for Care/Adoption proceedings (I even read an article today where a Circuit Judge has poured scorn on that), if you don’t have the testicular fortitude to stand up for your cause then please get on with being a bill drafting middle man. As a profession do we all just roll over like you or do we upskill and implement better ethics amongst ourselves.

  12. @callsaul
    I understand why you keep missing the point, it must be hard to see from that soapbox. I think there’s a few sweeping generalisms you’ve overlooked too, but there’s time I’m sure

    Returning from saul’s LaLa Land to the real world, I’ve just assessed a bill, a fairly standard faring, which includes a “48 minute” long letter initially to the client “acknowledging instructions and tendering advice”. In Replies it was maintained it was a proper bespoke advice letter and took the time as claim. On hearing, the DJ confirmed the letter appeared a standard client care letter, and when pressed the advocate confirmed it was system produced automatically. The signatory to the bill and replies has been called appropriately to explain themselves

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