The electronic bill of costs: friend or foe?

Anything electronic has always been controversial and can leave people feeling excluded. Certainly it seems that this is how the vast majority of practitioners feel when looking in on the new electronic bill of costs.

Having spent a significant period of time with the e-bill, however, it is time to open the door and welcome them in – electronic billing is the future. And, unlike vinyl records, there is unlikely to be any nostalgic return to paper in a few years’ time.

It has not been plain sailing to reach this point – only last weekend, I spent ages inputting data into an e-bill only to have the ‘wheel of doom’ appear and spin relentlessly – two hours’ work gone. It is a cautionary tale about using the autosave function.

From a drafting perspective, a rudimentary knowledge of Excel/spreadsheets is essential. That in itself can be a problem for a lot of practitioners and judges. Many of those approaching retirement are talking about hanging up their calculators and leaving it to the more computer-literate younger end of the profession.

One of the common errors drafters make is in the distortion of the spreadsheet by inserting lines and failing to appreciate that the cells require re-population with the formulas. This can lead to miscalculation of the bill totals, which in turn can lead to the receiving party facing a mis- certification point when the points of dispute are prepared.

The e-bill was, of course, pushed by Sir Rupert Jackson, and one of his ideals was that law firms should have technology to transfer data from their case management system directly into an e-bill. That would remove the above problem. Whilst this vision will undoubtedly be fulfilled at some future point, we are some way from that, especially as many fee-earners are yet to code up their work as they progress a matter.

On the plus side, being able to manipulate data and filtering can provide greater transparency, which was another one of Sir Rupert’s aims. This level of functionality is essential when checking a bill before service to ensure all items are appropriately coded. If they are not, the work will not carry over into the summaries, creating arithmetic errors within the bill. It will be a function of significant use on detailed assessment provided it is used correctly.

We have recently conducted a number of mock assessments with the assistance of two brave volunteer advocates and Master James, an even braver costs judge. These have been invaluable to gain an insight into how the process will work in the future, there having been hardly any e-bills gone through the actual process as yet.

One of the most glaring issues was the advocate’s ability to direct the judge to the appropriate items in dispute, and all parties remembering to remove any filters they had applied in earlier submissions before moving on to the next objection. The way advocates must prepare for a detailed assessment has changed.

Ironically, another issue was the difference in the speed of the laptops used. This caused some amusement for those watching the mock assessments, if less so for the advocates and definitely not for the judge. You would not want to see that level of frustration in court.

What everyone agreed was of significant value was how the e-bill recalculated whilst the detailed assessment was in progress. Gone are the days when the advocates leave chambers following the assessment, only to find they are still sat in the court precincts when the doors are being locked, trying to find the £1 they are apart in their calculations.

All this work has led me and others involved in the creation of the e-bill to believe that the pros outweigh the cons and the e bill is our electronic ‘friend’.

That said, it is imperative that the work behind the scenes continues as a new detailed assessment procedure is emerging and at present it is unclear as to how the rules and practice directions will need to change to accommodate this.

Blog for Thomson Reuters Dispute Resolution on 15 November 2019 by Claire Green, chair of the Association of Costs Lawyers

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19 Nov 2019

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