Bill of Costs Certification: The Need for Fee Earners Clarity
Barking, Havering & Redbridge University Hospitals NHS Trust v AKC  EWHC 2607 (QB)
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Bill of Costs Certification Barking, Havering & Redbridge University Hospitals NHS Trust v AKC  EWHC 2607 (QB)
The decision in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC  EWHC 2607 (QB) (29 September 2021) (‘Barking’) has illuminated the shadows of Practice Direction 47, paragraph 5.11(2), the need for bills of costs to set out the ‘status’ of the fee earners engaged. This is an area ripe for clarification given the varying levels of information which are presented within bills of legal costs in respect of this by law costs draftspersons.
Barking was a liability-admitted clinical negligence dispute which resolved amicably. Following settlement, a part paper part Precedent S electronic bill was filed for pre/post 6 April 2018 work respectively, as permissible under PD 47 para 5.1. Issues arose as to the identities/status of the instructed fee earners, culminating in an application being made to strike out the bill of costs (para 8). When the SCCO did not strike out the bill, an appeal was lodged. The High Court addressed the two key elements of the appeal as follows:
1. Bill of Costs Certification – Does the Bill Need to Specify a Name of the Certifying Party?
The requirements for a bill of costs certification can be found within mandatory provisions of PD 47 para 5.21/Precedent F, Bailey v IBC Vehicles Ltd  3 All ER 570 and the Solicitors Act 1974 S.69(2A). In Barking, the certifying party was simply referred to as a ‘Partner’ in the firm and the name was otherwise anonymised within the bill.
With the words of Lord Justice Henry in Bailey (certification being ‘no empty formality’) still echoing, the Court determined that, whilst on a literal construction, the provisions within the CPR did not explicitly require the identity of the signing party to be specified. The correct and ‘ordinary interpretation’ of the provisions was that this information must indeed be provided (para 36/37/38). Without this information, the bill was not certified properly (para 39/41).
2. The Failure to Provide Adequate Fee Earners Information – What Counts as a Sufficient ‘Statement of Status’?
Challenges were further raised with reference to PD 47 para 5.1/5.A1-5.A4, 5.7/ 5.11 on the basis that the name, SCCO grade and status were not provided and that the bills incorrectly blended together the work undertaken by the same bands of fee earner, thus, obscuring any review of the bill. Whilst a Part 18 Reply did provide clarification, this did not wholly resolve the underlying differences between the positions.
Regarding paper bills, it was considered unnecessary to provide the SCCO grading of a fee earner, but that this absence may result in doubt being resolved in the Paying Party’s favour. This is to be contrasted with the electronic bill provisions, which required the provision of such information. Both paper and electronic bills must set out the hourly rates and status of each fee earner, this latter requirement including the provision of the number of years post-qualification experience for formally qualified persons. Furthermore, the work must be distinguished between the different fee earners engaged, a blended approach was thus, inappropriate.
Outcome of the Appeal
The Appeal was successful. The decision underlines the need for the receiving party to provide candid and specific information as to instructed fee earners in order to comply with certification/fee earner status requirements. Any failure to do this risks a battle with a technically-minded Paying Party and a potential striking out of the Bill of Costs within the detailed assessment proceedings process or at any assessment hearing.
How Can ARC Costs Assist?
ARC Costs are a team of legal costs experts consisting of experienced Costs Draftsmen and Costs Lawyers. We regularly represent both paying and receiving parties in costs disputes, and ensure that the best outcome is always achieved for our client.
As an independent party, we bring objectivity to any costs dispute we encounter, and we can handle all aspects of costs queries/disputes. Whether it be providing advice on your initial retainer/conditional fee agreement, settling a Costs Budget or Bill of Costs, conducting negotiations/Points of Dispute or providing advocacy services in relation to a CCMC or detailed assessment hearing, one of our adept team members will be available to facilitate the best outcome possible. We have extensive experience handling County Court, High Court and Tribunal disputes, therefore do not hesitate to get in touch regarding any costs query. Examples of our work, including specific issues such as recovery of success fees, securing payments on account, disputing of Default Costs Certificates, and other examples can be found on our case studies page.
To contact one of the team, call 01204 397302 or send instructions to firstname.lastname@example.org.