I have a number of pet hates in 'costs', including:

Incorrect success fees - why oh why claim a success fee in excess of that prescribed by rule?

Incorrect ATE LEI premiums - why claim the full premium when it is as plain as a pikestaff (to all but the author of the bill) that the discount / rebate applies?

Lazy bill drafting - pray tell, for example, what is one to make of a bald nomenclature such as "Litigation Executive"?

Claiming irrecoverable costs - such as administrative costs (conflict checks etc.) and funding costs (when Motto has been with us for almost two years now).

Wilful costs-building (or 'creative costing' as I like to call it) - you know, not just finding those legitimate gaps for estimated time but grossly over-estimating and making it blindingly obvious that that's been done (example below).

Claiming medical agency fees that have already been discharged under the AMRO agreement - especially by those fools who will send a voucher in support which is emblazoned with the words "PAID IN FULL".

I have more, but perhaps they can all be gathered under the aforementioned category of 'lazy bill drafting'.

All such issues are seen on a daily basis to some degree or other and even some of the best in the business can make the odd, and forgivable, howler from time to time. But recently I have stumbled across a firm of costs draftsmen of which I had not previously heard (although I am familiar with their instructing solicitors) and if their bills of costs in those matters are typical of the bills they routinely produce then I should think that not only will they be out of business long before the full effect of the Jackson reforms are felt but they may well incur the wrath of the judiciary (which of course would also be felt by their instructing solicitors/lawyers) and the wasted costs regime on their way out.

Case 1:

A non-litigated employers' liability claim settled for an entirely modest sum within eight months or so: liability was admitted within a few weeks, a single GP report was obtained and damages were wrapped up following offer/counter-offer/counter-offer/acceptance over a matter of days. A bog standard low-value/high-volume personal injury claim in every respect.

The claim for costs? A shade under £19,000.00.

A hefty hourly rate (relative to the value/nature of the case) was claimed in respect of a purportedly Grade A fee-earner and yet the fee-earner concerned could not be located via the usual channels. It turned out that whilst not qualified, the fee-earner has a good number of years under the belt and is APIL accredited. Why did the bill of costs not say so? Why use the SCCO's nomenclature if the definition of the same cannot be satisfied? Lazy.

A success fee of 100% was claimed (*rolls eyes*). The bill even included time purportedly spent preparing what purported to be a risk assessment / statement of reasons in support of that success fee (I say 'purported' because, to my mind at least, it was as risible as the claim for 100% and was nothing more than a cut-and-paste template that could apply to any PI claim).

The full ATE LEI premium was claimed, supported by a 'certificate' (a web-portal printout) dated at or around the date on which such insurance was taken out. No doubt there was also a later certificate on the file, post-dating the swift admission of liability, which showed the greatly reduced / discounted premium payable. Maybe that was missed by the author of the bill - and the lawyer who 'checked' it (for an hour, allegedly).

The time claimed / purportedly spent was nothing short of ridiculous on any reading. And of course, the bill was riddled with administrative and funding costs (over and above the aforementioned 'risk assessment'). The bill also laid claim to the already paid medical agency fees.

Finally, I should mention that the bill of costs contained the prescribed certifications and were signed by the above-described, conducting fee-earner who, rather ironically I thought, placed that signature next to the word 'solicitor' on the signature line.

The result? A little under £4,000.00.

Case 2:

Another EL claim not wholly dissimilar to that above, save that the claimant was a minor and the medical report related to minor burns sustained in the course of the employment such that some additional work was necessary. Still, liability was swiftly admitted, damages were modest and quickly agreed and proceedings were not necessary (I shall come back to that last bit).

The claim for costs? Just over £25,000.00.

Again, this claim was purportedly conducted by a Grade A fee-earner. On this occasion however, the person concerned is a GILEx - as unabashedly stated in the fee-earner's email signature. This fee-earner also purported to have spent an hour checking the bill and again, signed the bill off next to the word 'solicitor'.

Success fee? 100% of course, save that is in respect of counsel's fee for a short advice on quantum and to which was added the correct success fee of 25%. That said, it wasn't actually correct at all as counsel's advice was taken, and counsel's CFA is dated, almost two months post-LASPO (Pausing there, I really do wonder if the claimant ever had the first idea that the lawyer was signing up to a CFA with counsel, and thus an entirely unnecessary success fee serving only to eat away at the modest damages, in circumstances where that advice was never going to be used for infant approval proceedings and even if it was, no doubt a junior barrister could have been found to advise on unconditional terms. Old habits die hard?).

Again, the time claimed and purportedly spent was absurd. As aforementioned, proceedings were not necessary in this matter as it was concluded (rightly or wrongly) by way of a parental indemnity form. The penultimate entry within the documents item concerned a claim for 30 minutes "preparing the parental indemnity form": would that be the same parental indemnity form sent by the defendant's insurers to the claimant's solicitors for signature?! A classic example of creative costing: the draftsman spotted what he/she believed to be a gap in the client's time recording, failed to read the contemporaneous correspondence carefully or at all so as to understand what really happened, assumed that the "solicitor" must have drafted the form and then over-egged the pudding - only to land most of that egg on his/her face (and potentially of course, that of the instructing lawyer).

The result? A little under £7,000.00.

All in all, two grotesque claims for costs (to borrow a suitable adjective from a different context) sloppily drafted with little or no care for what is right and properly recoverable by way of costs. While the issues of hourly rates, success fees etc. stand out at even first glance, it is within the minutiae that the real offence is caused. The above example regarding the parental indemnity form was literally the tip of the iceberg: the errors and the creative costing permeated almost each and every item in each bill of costs, right down to the almost amusing assertions that the author(s) of the bill(s) of costs fall(s) within the definition of the nomenclature 'Grade C'. Frankly, there aren't enough letters in the alphabet for him/her/them.

My real reasons for ranting onregaling you with the above are two-fold.

First, while a competent costs lawyer or costs draftsman instructed on behalf of a paying party can invariably (although not always) and reasonably efficiently cut through nonsense such as that seen in the above cases, it still takes time and money which really ought not have to be spent and will rarely be recoverable from the receiving party. Further, what if the receiving party does not instruct a costs lawyer / draftsman and endeavours to deal with costs itself (to avoid the said irrecoverable costs)? It is not at all difficult to envisage such a receiving party having the wool pulled over its eyes and thus paying well over the odds, as it were, with a false sense of achievement arising from having reduced the claim to a relatively small percentage of the original sum i.e. the 'game' I've previously moanedwritten about.

Secondly, we have the advent of provisional assessments and what is, according to rule and practice direction*, supposed to be contained in points of dispute. How does one remain 'succinct' when there is so much to (rightly and reasonably) say about such bills of costs? Moreover, having regard to Precedent G, a broad-brush approach to the documents items/schedules seen in the above two bills of costs is entirely inappropriate. With sincere respect to them, I shiver at the thought of such a bill of costs being provisionally assessed by a deputy district judge who has never dealt with a personal injury claim or perhaps even never assessed a bill of costs before (it happens).

Such outrageous claims for costs as those described above ought never be subjected to a paper-only assessment, irrespective of the fact that a dissatisfied party may request an oral hearing following a provisional assessment. A district/costs judge would most likely be entirely unimpressed by relatively enormous points of dispute challenging practically each and every item within a bill of costs such that without an advocate there to explain why that is (and without the receiving party's solicitors' full file of papers to hand) it has to be extremely doubtful that the 'rough and ready' justice of a provisional assessment, meted out with surprising speed if the pilot statistics are accurate and continue, would come even close to actual justice.

Claims such as those described above ought never even be negotiated in my view; they ought to be met with disdain, not even an offer to pay disbursements only, and an invitation (read 'dare') to put such bills of costs before a court for anxious scrutiny. Only then would district/costs judges really see how ridiculous many claims for costs frequently are and perhaps only then might this 'game' be brought to a long overdue close. Of course, the new and extended fixed recoverable costs regime will put paid to the majority of such shenanigans, or rather will limit the opportunities for such shenanigans, but not all.

Oh for a 'one-fifth rule' in between the parties assessments! But absent such a rule and absent any real teeth to CPR 47.20(3)(a) or (b), that view is very rarely an attractive proposition to a paying party: one rather lives and dies by the sword (especially now that CPR 36 has been introduced to the costs arena) and it would of course require a robust judge and/or a truly exceptional case to see such a claim thrown out in its entirety (pursuant, for example, to CPR 44.11).

Sadly, what invariably happens is that a paying party does its best to ascertain what the claim ought to reasonably be (perhaps with a 'heavier hand' than that usually taken) and makes an offer accordingly. The receiving party will then stamp its feet about what it perceives to be a 'derisory' offer ("we cannot possibly recommend a reduction of X% to our client"), make a series of counter offers (or "recommendations" as they often call them - a waste of everybody's time in my view) and ultimately come looking for a deal involving acceptance of the hitherto derisory offer but on the basis of each party bearing its own 'costs of the costs'.

That's my experience anyway and in recent months it has occurred with ever-increasing frequency. And as my much-beleaguered team will attest, it drives me insane and of late it has left a very bitter taste in my mouth.

* Has anyone else noticed that the MoJ's URL for the practice direction supplementing CPR 47 refers to CPR 46?!

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Tags: Costs, assessment, detailed, exaggeration, indemnity, injury, personal, principle, provisional

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