Legal Cost Specialists

Failure to serve electronic bill of costs

By on Dec 10, 2018 | 8 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:

  1. Tutting and proceeding with the assessment regardless.
  2. Refusing to proceed with the assessment until a compliant electronic bill (and amended paper bill) is served/filed.
  3. 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.
  4. Disallowing any post-6 April 2018 work (which may not be straightforward where the bill does not clearly identity all such work).
  5. Making a percentage reduction to the bill (perhaps roughly reflecting the proportion of post-6 April 2018 work claimed).
  6. Disallowing all costs.

    8 Comments

  1. Hi Simon, Long time fan of the blog.

    As a paying party representative, would you raise an issue in a case where an ‘old style’ bill was served, however a budget wasn’t approved (or even drafted in meso cases/large commercial litigation matters) – and as a result the paying party’s costs liability has been reduced?

    Because it takes a lot longer to draft an e-bill than an ‘old’ bill

    Fred

    10th December 2018

  2. There may be tactical considerations for raising the point even allowing for the fact an electronic bill may take longer to draft than a paper one. If the receiving party is already past or close to the deadline for commencing assessment, it might assist the negotiation process if a threat is made to make an application forcing the bill to be redrafted. The onus is on the receiving party to serve the bill in the correct format and a paying partying is entitled to take the point.

    Simon Gibbs

    10th December 2018

    • I disagree Simon. If, by way of example, a meso case takes £2k to draft an ‘old style’ bill on and a new bill will cost £3k – it would be utterly absurd for a paying party to insist on a new bill.

      The new bill was designed for budgeting, which doesn’t take place in some instances – making the new bill redundant.

      I’m sure we will get some case law on the point soon.

      Fred

      2nd January 2019

  3. I’ve so far prepared two electronic bills, both quite large ones, covering work done both before and after the magic date. I used the ACL format, which seems to me to be a considerable improvement on the official precedent, not least because it provides for each point of dispute to be placed next to the item objected to, so that an item-by-item assessment of the kind apparently beloved of paying parties can be conducted entirely on-screen.

    However, the rules about the format of PoDs have not been changed to reflect the introduction of the electronic bill, with the result that the paying party can quite legitimately serve paper PoDs in Precedent G. This makes it very cumbersome to work through the objections and, if using the ACL format, almost obliges the receiving party to do the paying party’s job by inserting each and every PoD into the electronic bill to see the net result of the objections. If the bill goes to assessment, is the costs judge really going to be happy to have the electronic bill on his screen, but be constantly referring to the paper PoDs? He might just as well work only with the paper version of the bill. Surely such an approach means that the electronic format confers few advantages at a detailed assessment hearing.

    Does anyone yet have experience of the way the electronic bill is actually dealt with at detailed assessment?

    Peter Burdge

    17th December 2018

  4. With Page in mind, I wonder if the parties can just dispense with an ebill by consent? I suspect not, which is frustrating as it is crap.

    CattyMcCat

    17th December 2018

  5. I cant actually believe that we as a profession are going into 2019, with representatives of Costs Draftspersons and public speaking lawyers etc declaring that this muddled up and nonsensical electronic bill is a good idea and is working in practice and no one is speaking out. I have seen adjournments just to avoid them.

    Or have we reached that stage where we just roll over and perish? sad times very sad times, no one with any balls left …….

    giveup2019

    18th December 2018

  6. In reply to giveup2019: ‘Much of the social history of the Western world over the past three decades has involved replacing what worked with what sounded good.’ – Thomas Sowell

    Peter Burdge

    4th January 2019

  7. Does anyone have any progress on this topic, any hope of understanding the current murky waters of the electronic bill in a practical sense is fading fast.
    Receiving party here…recently obtained a DCC with an old school paper bill, including all costs before and after the magical date we all love. Paying party has made an application to set aside on the grounds of defective service (i should add the case was a low value CN case settled before Defences).
    The Application on one hand is arguing this was a complex case…jump to the attached PODs….arguing that this was a straight forward case and making the subsequent hand fisted reductions to the bill.

    Having your cake and eat it springs to mind.

    CostsMonkey

    26th September 2019

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