The importance of attendance notes (alternative title – Don’t say I told you so!)
In the case of Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO) Costs Judge Leonard dealt with the assessment of costs following a private prosecution by the receiving party. The case involved large scale fraud in which the Allseas Group had invested £100m into a fraudulent investment scheme.
CJ Leonard dealt with the issues of hourly rates and of Counsels’ fees and provided a detailed analysis of the decisions made. The Judgment makes interesting reading as it sets out how CJ Leonard addressed the instruction of London Solicitors, how he dealt with the application of Guideline Hourly rates and their adjustment for work that he indicated bore comparison to the sort of heavy commercial work that have justified City of London rates – regardless of postcode.
CJ Leonard also dealt with the assessment of Counsels’ fees again giving lengthy explanations of how his decisions were reached for each of the barristers involved. An appendix was then added to the Judgment in which CJ Leonard provided further explanations of his reasoning.
However, it is not the intention of this article to go through all the Judgment and appendix in detail. Instead, we would refer you to CJ Leonard’s comments at Paragraph 7 of the appendix, wherein he stated that when dealing with the assessment of reasonableness:
“An element of doubt also arises where sufficiently specific records are lacking. For example, where a substantial conference takes place between solicitors and counsel I would normally expect to see a detailed record of the conference itself. Without such record an element of doubt inevitably arises, not so much as to the time actually spent but as to whether it can fully be justified. In such circumstances, it is necessary to take a conservative approach, as it is where it is unclear exactly what work is being done or what the outcome might have been.”
These sentences clearly set out the importance of having drafted a detailed attendance note of work done, whether it be for a conference with counsel, an attendance with the client or the consideration of a medical expert’s report. The wording used indicates it should be part of normal practice to prepare a detailed note in support of the time being claimed for work done and that the absence of such notes throws doubt upon the reasonableness of the work done.
If there is doubt regarding the work done, the costs for it will be reduced or disallowed altogether. CPR Part 44.3 states at (2) that where costs are being assessed on the standard basis the court will:
- Only allow costs which are proportionate for the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they are reasonably or necessarily incurred; and
- Resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
Therefore, the paying party only has to convince a Costs Officer of doubt to be able to obtain a decision in their favour and to achieve a reduction to the costs being sought.
In summary – draft a detailed attendance note to justify the time being claimed, especially on larger amounts of time, or you run the risk of some, or all that time being reduced if the paying party can raise a genuine issue with the same. Having a note that only reads “Conference with Counsel and the client – 3 hours” is providing the paying party with an easy target for reductions, something you should seek to avoid at all costs.
How can PIC help?
PIC’s National Training Manager, Dominic Woodhouse, regularly provides free inhouse and online training. As well as time recording (including the importance of attendance notes!) he also deals with profitability, hourly rates, fixed recoverable costs, costs budgeting, qualified one-way costs shifting and Solicitor Act assessments – to name but a few. Dominic, together with Lee Dixon, also has a regular podcast – Pod-Costs! Please do not hesitate to contact PIC to determine what training and assistance we can provide to your firm.
Mike Fitsell, Costs Lawyer
21.03.2024