Costs judge rejects application to make receiving party redraw bill of costs

14 February 2023

A costs judge has refused a paying party’s application for the claimant to redraw their bill of costs, brought on the basis that it failed to identify provide details of individual fee earners and was “intolerably opaque” as a result.

Costs Judge Nagalingam found the bill met the guidance handed down by the Court of Appeal last year in AKC v Barking, Havering & Redbridge University Hospitals NHS Trust.

In Brierley v Otuo & Ors [2023] EWHC 275 (SCCO), the defendants argued the bill was “miscertified as to accuracy and completeness” by not including fee-earner information. They said that, because this made it “intolerably opaque”, they were unable to provide any points of dispute without a redrawn bill.

They said the bill should identify the various fee-earners by name, status (qualification and number of years post-qualification experience (PQE)) and hourly rate claimed, as well as the work they carried out.

Subsequent to the application being brought, the claimant served an amended bill. The judge observed: “Whilst the covering letter serving the amended bill does not specify the reason for the amendment to be the paying parties’ application, it is obvious that the application prompted the amendment and, subject to arguments as to costs, the paying parties have been successful in securing the amendment their application set out to achieve.”

He went on to find that, within the terms of the application, the amended bill was compliant with the AKC guidance by providing the name, status (e.g. partner), qualification (e.g. solicitor) and date of admission to the roll.

The defendants took issue with the failure to spell out how many years of PQE each solicitor had, alleging that one had spent a period of time working for an insurance company in a capacity that would not count towards his PQE.

Judge Nagalingam said it was for the paying party to raise in their points of dispute an argument that a fee-earner’s actual years of PQE were not commensurate with the hourly rate being sought.

The defendants also contended that the paper bill included work which post-dated 6 April 2018 and so should have been served in an electronic bill instead.

The judge said: “I am not required to address this point because it is not in fact a properly articulated factor in the application. However, as a point of principle, if the wrong format of bill has been served, it is better addressed at this stage than at the start of a detailed assessment hearing.”

The claimant pointed to paragraph 5.1(a) of PD 47, noting that the underlying litigation was not a part 7 multi-track claim. In those circumstances, the receiving party may elect whether to present an electronic bill or a paper bill – here they chose the latter.

Judge Nagalingam held: “Accordingly, on all limbs of this application to redraw the bill, I find in favour of the receiving party and the application is therefore dismissed. There are no procedural irregularities that would otherwise compel or convince me that the latest version of the bill of costs needs to be redrawn and re-served.”

He reserved the costs of the application to the conclusion of the detailed assessment.

Mr Meehan (instructed by Helix Law) for the claimant. Mr Otuo (acting as litigant in person) for the defendants.

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14 Feb 2023

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