To re-draw or not to re-draw.
The Judgment in Brierley v Otuo & Ors [2023] EWHC 275 (SCCO) concerned the Defendants’ application for the Claimant to re-draw the bill on the grounds of mis-certification as to accuracy and completeness insofar that it failed to identify the various fee earners by name, status (including qualification and number of years post-qualification experience) and hourly rate claimed by each fee earner for their work and identifying those works claimed accordingly.
The Defendants contended that the bill was “intolerably opaque” and suggested that they were unable to provide any points of dispute to individual costs until such details regarding the fee earners were provided in a re-drawn bill.
The Claimant amended their bill, and it was obvious that the Defendants’ application prompted the amendment. As such, the Defendants had been successful in securing the amendment their application set out to achieve.
The question thereafter was whether the amended bill was compliant given the Court of Appeal guidance in AKC v Barking, Havering & Redbridge University Hospitals NHS Trust [2022] EWCA Civ 630. The narrative detailed the name, status and qualification of four solicitors (three of whom were partners) and their respective dates of admission to the roll of solicitors. Despite this, the Defendants took issue with the failure to spell out how many years of post-qualification experience each solicitor had given that one of the fee earners had spent a period post-qualification working for an insurance company in a capacity that would not count towards his post-qualification years of experience.
Costs Judge Nagalingam, having reviewed the court of appeal’s guidance in AKC, was satisfied that the amended bill was compliant, and it was entirely a matter for a paying party should they wish to raise in their points of dispute an argument that a fee earner’s actual years of post-qualification experience was not commensurate with the hourly rate being sought.
The Defendants also sought to argue that the paper bill served ought to have been an electronic bill in line with Practice Direction to CPR Rule 47 paragraph 5.1(a) as it included work after 6 April 2018. Costs Judge Nagalingam was not required to address this point because it was not a properly articulated factor in the application however, as a point of principle, it was better addressed at this stage than at the start of a Detailed Assessment Hearing.
The Defendants had failed to observe that the underlying litigation from which the order for costs flowed was not a Part 7 multi-track claim therefore, in those circumstances, a receiving party may elect whether to present an electronic bill or a paper bill. In the index matter, the Claimant had exercised their discretion to present a paper bill.
Accordingly, on all limbs of the application to re-draw the bill, Costs Judge Nagalingam found in favour of the Claimant and the Defendants’ application was dismissed. The costs of the application were reserved to be addressed at the conclusion of the detailed assessment proceedings.
This Judgment is helpful to a receiving party in that it confirms that the electronic bill is not required, even for costs incurred after 6 April 2018, unless Part 7 proceedings have been allocated to the multi-track and furthermore there is no need to forensically scrutinise each fee earner’s CV for their employment history to determine post-qualification years of experience. The fee earner’s name, status, date of admission to the roll of solicitors (or like qualification such as Chartered Legal Executives) and hourly rate is more than sufficient.
Mathew Lawton, Costs Lawyer
30.03.2023