AKC (a protected party by litigation friend MCK) v Barking, Havering and Redbridge University Hospitals NHS Trust. (Court of Appeal – 10 May 2022)
The Court of Appeal dismissed the appeal against the order of Steyn J dated 29 September 2021 arising from her judgment that receiving parties can no longer withhold basic information as to who has done the work claimed within a bill of costs.
The judgment confirms information as to the identity, grade, professional qualification and post qualification experience of each fee earner and hourly rates must be provided in relation to the work claimed within a bill of costs.
The claimant served a bill of costs of £1,040,412 in which the defendant identified the following issues:
The defendant served points of dispute raising objection by way of preliminary issues requesting the information be provided within 14 days, failing which the defendant would apply for an order that the bill of costs do stand struck out for non-compliance to the extent to which it is not otherwise sensibly remediable other than by redrafting the bill.
The claimant refuted there was an obligation to provide the information under the rules.
The defendant made an application to strike out the bill of costs and for an order that the claimant should serve a CPR compliant bill. At first instance, Master Nagalingam dismissed the application finding:
The defendant appealed on the basis that the Master was wrong in law.
In a reserved judgment handed down on 29 September 2021, Mrs Justice Steyn allowed the appeal on all three issues finding:
The claimant appealed the second and third findings on the basis that the CPR does not give rise or allow the interpretations imposed by the judge as to the required fee earner information.
The Court of Appeal dismissed the appeal finding;
Lord Justice Newey said:
“50. The upshot is that, in my view, any electronic bill, whether in Precedent S spreadsheet format or any other spreadsheet format, must include the name, the SCCO grade and, in so far as it adds anything to the grade, the status of each fee earner except possibly in so far as the receiving party’s solicitors may have outsourced work to an agency.”
NHS Resolution has seen an increase in the behaviour of some claimant firms to withhold relevant information required for the assessment of costs. This behaviour masks items that are likely to be disallowed or reduced if more readily identifiable.
Steyn J identified the issue as follows:
“Without a breakdown of work undertaken by individual fee earners, it is impossible to know whether, for example, two different fee earners within the same status category each spent one hour working on a letter, on consecutive days, or whether only one fee earner spent two hours across two days working on it.
This kind of information is capable of revealing that work has been duplicated, in whole or in part. It is also impossible to detect, for example, if a claim has been made that an individual fee earner undertook, say, 10 hours work on disclosure on a day when a claim has also been made for the same fee earner’s attendance at a one day hearing, giving rise to questions about the accuracy of the claim.
Such anomalies are hidden if work is claimed by reference to categories of fee earner. In addition, the provision of the names of fee earners enables the paying party to check the expertise and experience of individual fee earners, when considering whether the rate claimed is reasonable.”
Lord Justice Newey agreed.
All bills of costs need to provide the necessary detail (name, grade, professional qualification and post qualification experience) to allow the parties and the court to understand the costs being claimed in a clear, transparent and intelligible way.
This judgment should result in far greater transparency in future bills that will accelerate assessment and resolution of costs claims and reduce costs paid by the National Health Service.
Head of Costs
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