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Bill of costs struck out for being non-compliant

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Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607

Mrs Justice Steyn DBE, siting with Master Brown, allowed an appeal to a decision of Master Nagalingam on the basis that the signatory on the bill certificate was not identifiable, and the bill failed to give the name and status for each fee earner and identify the work that was done by each of those fee earners.

On both issues the paying party raised the issue in the points of dispute. The receiving party brushed off the objection asserting that it had complied. Both issues could have been rectified at that stage.

Certifying the bill

The objections simply asked that the Claimant identify the signatory to the bill of costs. The Claimant refused to do so.

The Court identified the importance of certifying the bill with reference to Bailey v IBC Vehicles Ltd [1998] 3 All ER 570. The Court ruled that the solicitor certifying the bill must be identifiable.

The Court questioned why the information was withheld when all that was required to remedy this point was to provide an amended certificate.

Identifying the fee earners

The bill simply identified categories of fee earner such as Partners, Senior Solicitors, Trainees and Paralegals.

The Defendant invited the Claimant to amend their bill of costs, but they declined to do so. The Defendant then made a Part 18 request for the names and grades of the fee earners involved. The Claimant responded, providing the names and description for the 33 fee earners that had worked on the file.

The Court ruled that the Practice Direction required the status and rate to be given on an individual basis, rather than by reference to categories, and therefore each fee earner should be named in the bill. Without such a breakdown, it would be difficult to identify duplication between fee earners claimed within the same category, for example. Status includes details of experience, expertise and qualifications.

Bill Struck Out

All is not lost. The Defendant sought to strike out the bill of costs, not strike out the claim for costs. So, it seems the bill can be amended and re-served. The issue will be the wasted costs and the costs of the appeal.

It would have been a lot cheaper to just amend the bill and certificate in the first place.

The lesson to be learnt, is that sometimes it is not worth defending a point for the sake of it. If the paying party asks for it, and its not controversial, privileged or commercially sensitive, let them have it.