In the matter of Brierley v Outo & Ors, Costs Judge Nagalingam gave consideration to the paying parties’ application that the receiving party’s Bill of Costs should be redrawn as one of the fee earners named did not have the necessary years of experience.
The receiving party served their Bill of Costs on the paying parties on 12 January 2022. The Bill of Costs was served in paper format despite containing work undertaken after 6 April 2018. The paying parties filed an application on 19 March 2022 which required the receiving party to redraw the Bill of Costs.
The Paying Parties’ application
The paying parties took the view that the Bill of Costs had been mis certified as to accuracy and completeness insofar as it fails to identify the various fee earners by name, status and hourly rate claimed by each fee earner for their work and identifying those works claimed accordingly and is intolerably opaque. The Paying Party went on to state that they were unable to provide any Points of Dispute to individual costs claimed until such details are provided in an amended bill and suggested that the current bill should either be amended or struck out.
An amended Bill of Costs was served on 30 March 2022. While the receiving party did not specify the reason for the amendments, it was clear from the bill that the application had prompted the amendment. The paying party had been successful in securing the amendment their application set out to achieve.
The Court’s findings
The paying parties took issue with the failure of the receiving party to spell out how many years of post-qualification experience each solicitor had, and alleged that one solicitor in particular had spent a period of time post-qualification working for an insurance company that would not count towards post-qualification experience.
Consideration was given to AKC v Barking Havering & Redbridge University Hospitals NHS Trust, which contains guidance from the court of appeal about the requirements of a paper bill. As the amended bill served on 30 March 2022 set out the name, status and qualification of the solicitors involved, the amended bill was considered compliant. The Court suggested that the issue with the post-qualification experience of one particular fee earner was one that could be resolved within their Points of Dispute, and not via application.
Should a paper bill have been prepared?
The paying parties went on to suggest that the paper bill served should have been an electronic bill, as the bill included work after 6 April 2018. AKC was again referenced by the paying parties. The court considered this point as it would be better to address this at this stage during the proceedings rather than at the start of a detailed assessment hearing.
The receiving party relied upon paragraph 5.1(a) of PD47 of the CPR. As the underlying litigation for their order for costs did not relate to a Part 7 multi track claim, they had the election whether to prepare an electronic or paper bill. Costs Judge Nagalingam shared this view and agreed that the receiving party had exercised their discretion to present a paper bill.
The judge found in favour of the receiving party on all limbs of the application and was unable to locate any procedural irregularities that would require the bill to be redrawn. Therefore, the application was dismissed.
While this may have the obvious upside that receiving parties are not required to verify the experience held by each fee earner within the bill of costs, this does indicate the level of detail paying parties may be prepared to explore in order to attack the bill and reduce their liability for costs. This may yet prove to also be a warning shot to all receiving parties to not take the date of qualification for granted as if anything outside of the norm is uncovered by the paying party, they may find themselves needing to defend the suitability of that fee earner’s experience during some detailed assessment proceedings in the near future.