Judge complains about costs schedule with unexpected headings

Costs schedules are in the news again, with the High Court criticising a party for not providing its schedule in the correct form for a summary assessment.

Her Honour Judge Watson, sitting in the Technology and Construction Court, stressed that this was “not a purely formal problem, not a question of form for the sake of it”.

She made the comments after issuing summary judgment in favour of the claimant in its claim to enforce a decision of an adjudicator. Changing Climates Ltd v Warmaway Ltd [2021] EWHC 3117 (TCC) is a ruling from September which was only published just before Christmas.

She said: “There is a reason that the court requires a standard form for a schedule of costs in litigation. It is because the parties, solicitors, counsel and judges develop a degree of familiarity with the format.

“They know what costs go where and it becomes quite easy to look at the schedule, with the various headings, in the way that the defendant produced its schedule, and form a view as to whether the costs are reasonably incurred and proportionate in amount.

“There are two problems with the claimant’s costs schedule today. One is the fact that the court does not have the updated costs schedule, which I understand has been prepared. Also, the defendant did not receive it until this morning and, of course, it needed to be served at least a day before the hearing.

“The second problem, which is to my mind not a purely formal problem, not a question of form for the sake of it, is that the schedule is not in the correct form.”

The judge said the schedule replicated the headings of form N260 in some respects, “but it confuses matters because it contains additional headings, which the court is not used to”.

These included ‘Preparation for the hearing on 18 August’, which featured work “that one would normally expect to see properly allocated to the other headings, such as attending on the claimant, attending on the defendant, attending on others or work on documents”.

Furthermore, the judge said, there was a lack of detail on the work done attending the claimant, attendance at the hearing and work done on documents.

This made it “much harder for the court to assess, and for defendant to make detailed submissions as to, whether something is reasonable or proportionate in amount in the absence of the level of detail you would expect and the categorisation in the usual form”.

HHJ Watson continued: “I do have concerns here that the descriptions of the work seem to duplicate each other to some degree in that we have in the ‘work done on documents’, ‘review of evidence’, ‘drafting claimant’s further evidence’, ‘reviewing and amending’ and ‘producing bundles’. Those seem to be part of work done on documents.

“Yet, work for the preparation for the hearing is described as ‘drafting, bundling, travelling, waiting’ (obviously waiting is not relevant for a remote hearing) and ‘application’. That suggests that it includes some work relating to the application itself.

“There is also a heading ‘letters and emails in and out; telephone attendances and meetings’. The schedule is hopelessly confused and not in the correct form and it does not enable the court easily to form view as to what is proportionate.”

As a result, the judge said, “all I can do is do the best I can”. In reaching a figure, she concluded that the solicitors’ time was high: “I am not suggesting they have double-counted the same work, but it is not clear what work has been allocated to which category.”

We reported last month on two other cases where costs schedules were under the microscope, with the judge ordering costs in one despite the absence of a schedule and a party receiving a ticking off for complaining that the schedule was served by email in the other.

Ms K Gough appeared on behalf of the claimant and Mr J Ward on behalf of the defendant.

Exclusive Access

Members only article

This article is exclusively for ACL members. Please log in to proceed, or click the button below to fill out an application from and become a part of our professional community.

Post details

Post type
Costs News
Published date
12 Jan 2022

Fill this form out to be notified when booking goes live.

Your Full Name
This field is for validation purposes and should be left unchanged.