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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AKC v Barking, Havering & Redbridge University Hospitals NHS Trust  EWCA Civ 630 (10 May 2022)
Cite as:  EWCA Civ 630,  WLR(D) 203
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Steyn (sitting with Costs Judge Brown as an assessor)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DINGEMANS
LORD JUSTICE LEWIS
(sitting with COSTS JUDGE ROWLEY as an assessor)
(Protected party by her mother and litigation friend MCK)
|- and -
|BARKING, HAVERING & REDBRIDGE UNIVERSITY HOSPITALS NHS TRUST
Robert Marven QC (instructed by Keoghs LLP) for the Respondent
Hearing date: 12 April 2022
Crown Copyright ©
Lord Justice Newey:
"may consist of such of the following sections as may be appropriate
(1) title page;
(2) background information;
(3) items of costs claimed under the headings specified in paragraph 5.12;
(4) summary showing the total costs claimed on each page of the bill;
(5) schedules of time spent on non-routine attendances; and
(6) the certificates referred to in paragraph 5.21".
Paragraph 5.11, headed "Form and content of bills Background information", stipulates:
"The background information included in the bill of costs should set out
(1) a brief description of the proceedings up to the date of the notice of commencement;
(2) a statement of the status of the legal representatives' employee in respect of whom costs are claimed and (if those costs are calculated on the basis of hourly rates) the hourly rates claimed for each such person.
(3) a brief explanation of any agreement or arrangement between the receiving party and his legal representatives, which affects the costs claimed in the bill."
"The claimant instructed E F & CO under a retainer which specifies the following hourly rates.
Partner - £217 per hour plus VAT
Assistant Solicitor - £192 per hour plus VAT
Other fee earners - £118 per hour plus VAT
Except where the contrary is stated the proceedings were conducted on behalf of the claimant by an assistant solicitor, admitted November 2008."
Amongst the items of costs claimed in Precedent A are:
"Engaged in Court 3.00 hours £576.00"
"First instructions: 0.75 hours by Partner" (for which profit costs of £162.75 are sought)
"Electronic bills may be in either Precedent S spreadsheet format or any other spreadsheet format which
(a) reports and aggregates costs based on the phases, tasks, activities and expenses defined in Schedule 2 to this Practice Direction;
(b) reports summary totals in a form comparable to Precedent S;
(c) allows the user to identify, in chronological order, the detail of all the work undertaken in each phase;
(d) automatically recalculates intermediate and overall summary totals if input data is changed;
(e) contains all calculations and reference formulae in a transparent manner so as to make its full functionality available to the court and all other parties."
|LTM||LTM Name||LTM Status||LTM Grade||LTM Rate||LTM Rate Effective From|
|WT1||William Taylor||Partner||A||£240.00||to May 2012|
|WT2||William Taylor||Partner||A||£300.00||from June 2012|
|FD||Fiona Duggan||Legal Assistant||D||£160.00|
|TI||Thomas Irwin||Costs Draftsman||D||£160.00|
|NV||Nicholas Vine||Junior Counsel||JC||£146.00|
"(i) The bill must provide more transparent explanation than is currently provided, about what work was done in the various time periods and why.
(ii) The bill must provide a user-friendly synopsis of the work done, how long it took and why. This is in contrast to bills in the present format, which are turgid to read and present no clear overall picture.
(iii) The bill must be inexpensive to prepare. This is in contrast to the present bills, which typically cost many thousands of pounds to assemble."
"[A] Solicitors with over eight years post qualification experience including at least eight years litigation experience and Fellows of CILEX with 8 years' post-qualification experience.
[B] Solicitors and Fellows of CILEX with over four years post qualification experience including at least four years litigation experience.
[C] Other solicitors and Fellows of CILEX and fee earners of equivalent experience.
[D] Trainee solicitors, trainee legal executives, paralegals and other fee earners."
This is added:
"Qualified Costs Lawyers will be eligible for payment as grades B or C depending on the complexity of the work done."
The bill of costs
"A Solicitor had day to day conduct of the matter with assistance from junior fee earners."
The paper bill then gives the hourly rates claimed in respect of periods up to 5 April 2008. Where relevant, rates are given for "Partner" ("P"), "Solicitor 1 with over 8 Years Experience" ("S1"), "Solicitor 2 with over 4 Years Experience" ("S2"), "Solicitor 3 with less than 4 Years Experience" ("S3"), "Paralegal (Special Damages, Sheffield Based Fee Earner" ("PL SD"), "Others: Trainee Solicitor, Paralegal, Litigation Assistant" ("O") and "Others: Trainee Solicitor, Paralegal, Litigation Assistant (Court of Protection)" ("O COP").
"(PERIOD B) Solicitor 2
1 telephone call £37.50
(PERIOD C) Solicitor 1
1 long telephone call:
6/3/17 Discussing case manager and instruction of support workers : 12 minutes
Engaged: 12 minutes £94.00
1 telephone call £47.00
2 letters/emails out £94.00"
"SCCO grades are not given, although it is apparent from the descriptions of 'O', 'PL SD' and 'O COP' that they fall within grade D. While a partner would, perhaps, ordinarily fall within grade A, that is not necessarily the case. The descriptions of S1, S2 and S3 may correlate with grades A, B and C, respectively, but the bill of costs is not explicit as to whether the periods of 'experience' referred to are 'post qualification experience' and 'litigation experience'."
"The status of the fee earner undertaking the work is clearly apparent within the Bill, specifically when the years PQE is clearly identified, but for clarification:
Partner Grade A
Solicitor 1/Legal Executive with over 8 Years' Experience Grade A
Solicitor 2 with over 4 Years Experience Grade B
Solicitor 3 with less than 4 Years Experience Grade C
Costs Advocate/Costs Lawyer Grade C
Costs Draftsman Grade C
Paralegal/Trainee Solicitor/Litigation Assistant Grade D"
|Lauren Hurney||Solicitor with over 4 Years Experience moving to Grade A in September 2016|
|Kirsten Morley||Trainee Solicitor, Paralegal, Litigation Assistant|
|Charles Solomon (SDU)||Paralegal (Special Damages)|
|Richard Butler (SDU)||Paralegal (Special Damages)|
|Emma Cadman (SDU)||Paralegal (Special Damages)|
|Elizabeth Paterson||Solicitor with over 4 Years Experience|
|Charlotte Faldo||Trainee Solicitor, Paralegal, Litigation Assistant|
|Lara Mariacher||Trainee Solicitor, Paralegal, Litigation Assistant|
|Fiona Hamilton-Wood||Trainee Solicitor Grade C from 3 July 2017|
|Sezan Taner||Trainee Solicitor, Paralegal, Litigation Assistant|
|Alexandra Evans||Trainee Solicitor, Paralegal, Litigation Assistant|
|Nicolas Cerezo||Trainee Solicitor, Paralegal, Litigation Assistant|
|Sally Sargesson (Costs)||Legal Executive with over 8 years Experience|
|Tasara Mutuka (Costs)||Grade C Experience|
|Rebecca Lanham||Trainee Solicitor, Paralegal, Litigation Assistant|
|Jeremy Smith (Costs)||Grade B Experience|
|Rebecca Lanham||Trainee Solicitor Grade C from 1 March 2018|
|Jodie Davis (Costs)||Legal Executive with over 8 years Experience|
|Letesha Reid (CoP)||Trainee Solicitor, Paralegal, Litigation Assistant|
|Hanan Harrington (CoP)||Trainee Solicitor, Paralegal, Litigation Assistant|
|Steven Farmer (Costs)||Costs Lawyer|
|Tasara Mutuka (Costs)||Costs Draftsman Grade C|
|Charisse Tapang||Trainee Solicitor, Paralegal, Litigation Assistant|
|Kristina Szilvayova||Trainee Solicitor, Paralegal, Litigation Assistant|
|Richard Jervis (CoP)||Solicitor Grade C from 1 March 2017|
|Julia C Lomas (CoP)||Partner|
|Cally Harrington||Trainee Solicitor, Paralegal, Litigation Assistant|
|Samuel Wilson (CoP)||Trainee Solicitor, Paralegal, Litigation Assistant|
|Benjamin Emsley (CoP)||Trainee Solicitor, Paralegal, Litigation Assistant|
|Kirstie Chambers (CoP)||Trainee Solicitor, Paralegal, Litigation Assistant|
|Jennifer Davies||Trainee Solicitor, Paralegal, Litigation Assistant|
|Vanessa Whitaker (Costs)||Costs Lawyer"|
The decisions below
Costs Judge Nagalingam
"249. The paper and e-bill give sufficient descriptions of the status of the fee earners which fall under each category claimed. There is no procedural requirement to name fee earners, or to rank them by reference to the SCCO Guideline grades.
250. Accordingly, I do not consider that there has been non-compliance with regards to provision of a statement of status of the legal representatives' employees. Accordingly, the bill will not be struck out for this reason.
251. However, the receiving party is reminded that on a standard basis assessment of costs, the court will 'resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party' (CPR 44.3(2)(b)).
252. It is a matter for the receiving party as to how much detail they wish to provide in a 'statement of status' but it strikes me that where that statement leaves any doubt, then the receiving party can have no complaints in an experienced or qualified fee earner being awarded a rate lower than they might otherwise be entitled to."
"As a matter of ordinary language, and particularly in the context of costs, a legal professional's status is indicated not only by their professional qualification but also by their level of experience. An interpretation of the rules and practice direction which enables receiving parties to withhold such basic information would be liable to result in bills of costs becoming less transparent, which in turn would be likely to inhibit the ability of paying parties to make offers and of the court to assess costs."
"I consider that [AKC's] paper bill did not comply with the requirements to specify, in respect of each individual named employee, their hourly rate(s) and status, including, for any fee earner with a professional qualification (such as a solicitor or Fellow of the Chartered Institute of Legal Executives), the number of years of post-qualification experience".
"This is part of the 'detail' which must be provided whether the Precedent S spreadsheet format or another spreadsheet format is used. Who has undertaken each item of work is a key part of the detail and, without it, the bill is opaque. In order to be fully functional, the spreadsheet must enable the paying party and the court to see what work any particular fee earner has undertaken, in the way described in the SCCO Guide ."
As for SCCO grades, Steyn J said in paragraph 111:
"In Precedent S there are columns for both status and grade, reflecting the fact that these descriptions seek different information. In this context, the word 'grade' is a term of art meaning SCCO grade. While the SCCO rates may be more material on summary assessment than on detailed assessment, they are relevant, at least as a starting point, and are invariably relied upon by parties, in the context of detailed assessment; and the SCCO grades provide basic information as to post qualification and litigation experience which is important in considering matters such as whether the rates claimed are reasonable, whether the work should reasonably have been delegated or is excessive in time. While I have found that it is not a breach of paragraph 5.11(2) not to provide the SCCO grades in the paper bill, electronic bills are required to be more informative and more transparent than was required for paper bills to be compliant."
"In my judgment, [AKC's] electronic bill of costs failed to provide the detail of all the work undertaken in each phase and failed to provide the reference formulae in a transparent manner. [AKC's] electronic bill of costs does not meet the 'full functionality' requirement."
"[AKC] has provided the names of fee earners in the part 18 response and has gone some way towards providing their SCCO grades, albeit the grades remain unclear in relation to a number of fee earners (either because the grade has not been provided at all or sufficiently clearly). But the provision of a list of fee earners separate from the electronic bill of costs does not remedy the breaches which I have found. Even with such information, neither the [Trust] nor the court is able to filter items of work by reference to individual fee earners."
The paper bill
The electronic bill
"Without a breakdown of work undertaken by individual fee earners, it is impossible to know whether, for example, two different fee earners within the same status category each spent one hour working on a letter, on consecutive days, or whether only one fee earner spent two hours across two days working on it. This kind of information is capable of revealing that work has been duplicated, in whole or in part. It is also impossible to detect, for example, if a claim has been made that an individual fee earner undertook, say, 10 hours work on disclosure on a day when a claim has also been made for the same fee earner's attendance at a one day hearing, giving rise to questions about the accuracy of the claim. Such anomalies are hidden if work is claimed by reference to categories of fee earner. In addition, the provision of the names of fee earners enables the paying party to check the expertise and experience of individual fee earners, when considering whether the rate claimed is reasonable."
"The status of a practice direction has been authoritatively delineated by Hale LJ in In re C (Legal Aid: Preparation of Bill of Costs)  1 FLR 602, para 21, May LJ in Godwin v Swindon Borough Council  1 WLR 997, para 11, and Dyson LJ in Leigh v Michelin Tyre plc  1 WLR 846, paras 19-21. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all."
Echoing that, Lady Black observed at paragraph 98 of An NHS Trust v Y that "a practice direction cannot establish a legal obligation when none already exists" and Lord Wilson said in In re NY (A Child) at paragraph 38 that "practice directions, even including those which are stated to supplement the [Family Procedure Rules 2010], are not made pursuant to that or any other statutory authority". However, CPR 47.6 specifically cross-refers to Practice Direction, providing for service of "a copy or copies of the bill of costs, as required by Practice Direction 47" and "if required by Practice Direction 47, a breakdown of the costs claimed for each phase of the proceedings" (emphasis added in each instance). In the circumstances, Practice Direction 47 does not merely "provide invaluable guidance to matters of practice" but carries authority.
Applications to admit new evidence
Lord Justice Dingemans:
Lord Justice Lewis: