With further changes to be implemented in respect of fixed costs in April, and with caps imposed on Multi-Track costs where a Costs Management Order has been made, it is becoming increasingly important for Solicitors to maximize their costs recovery on any costs which will still be subject to detailed assessment if those costs cannot be agreed beforehand.

 

There are many ways in which your Costs Draftsman or Costs Lawyer should be assisting you in achieving as high a recovery as possible however, there are also a number of things that the fee earner responsible for the day-to day running of the case can do which will ensure costs are maximised from the outset.

 

  1. RETAINERS – Is it valid…does it even exist?

 

One of the fundamental issues we still encounter, are defective or absent client retainers. Simply put, if you don’t have a retainer or it is invalid, your costs are not recoverable under the indemnity principle.

 

It is imperative that retainers are signed and dated, and that the retainer covers the requisite work (we often see claims where additional applications are not provided for in more commercial claims rendering costs unenforceable). It is also important to ensure that hourly rate charges for the work anticipated are clearly set out and that the client understands fully the terms of the retainer.

 

Does your client have the authority to sign the retainer? –  This still catches practitioners out, especially when a client dies during the litigation. Thereafter, a new retainer must be put in place with all the Executors; costs are not recoverable until that step is taken. Furthermore, unless the new party signing the agreement has the entitlement to progress the case for the Estate, the retainer will be unenforceable – remember, if someone dies intestate no one has the authority (not even retrospectively) until an Administrator is appointed via Letters of Administration. Do not incur costs for periods of time when until a new and valid retainer is in place.

 

  1. TIME CLAIMED – The money is in the detail

 

One of the key issues we see more and more in both provisional and detailed assessment relates to reductions sought to time claimed in the Bill where the work is unsupported by the file of papers.

 

Detailed time recording may seem like a chore; however, it is important to realise that full and detailed files notes ultimately “sell” your time to an opponent or Costs Judge. It is frustrating for both us as Costs Professionals and our client’s alike where work has been undertaken for which you do not get paid for just because the work is not properly been recorded on file. Always remember, you have done the work so why risk not being paid for it.

 

The money is in the detail – the more detail provided within the Bill of Costs and indeed the supporting attendance notes will improve costs recovery exponentially. A general rule to adopt is the greater the time the more detail required. For example, if one hour is claimed for preparing a witness statement then an entry such as “Preparing Claimant’s witness statement” would be largely sufficient. However if the time claimed is eight hours for the same work then the following would be more appropriate; “Considering evidence obtained upon meeting the client to incorporate into first draft witness statement, considering liability evidence including accident reports and initial breach of duty reports to check for inconsistencies with Claimant’s testimony, checking and updating draft Statements and highlighting areas which require further attention and formulating questions to ask of Claimant in order to finalize Statement.”

 

Whilst costs of preparing a routine attendance note won’t generally be recoverable, it is important to note that a detailed file note will be (Brush & Another v Bower Cotton & Bower (a firm) [1993] 4 All ER 744) and so surely it’s better to get paid twice than not to be paid at all?

 

It is not just the amount of detail which is important, but the wording is equally important. A typical example which we often come across is the overuse of the word “reviewing”. On the face of it this may seem to be purely semantics; however, this is often deemed to be “lazy” time recording raising doubt as to the reasonableness of the time recorded. Such a simple way to increase the chance of recovering the time claimed, would be to replace the work “reviewing” with examining, considering, inspecting, analysing, appraising or assessing as examples – making sure the action is progressive to the case.

 

A further example would be the use of the word “amending”. While it is clear and obvious that larger documents cannot be completed in one day, the word amending can arguably be interpreted as meaning that the original work was not satisfactorily prepared and required amendment and that this cost should not be borne by the Paying Party. However, more often than not, what the Receiving Party actually meant, and what will lead to a much higher chance of recovery is the word “updating and continuing work on…”

 

Also, remember you are paid to “advise” your client’s not to “discuss”.

 

  1. KNOWLEDGE OF THE WORK DONE – Knowing what is recoverable

 

Practitioners are often left disappointed with less than expected recovery, or alternatively by missing out on costs which they deemed recoverable, due to a lack of knowledge as to what is actually progressive and recoverable.

 

The following examples are just a few of those which we often encounter when drafting:

 

Travel to attend Client – When is it recoverable? The CPR states that travel time is recoverable where the distance is more than 10 miles from the Solicitors Office; however, Paying Party’s will often raise challenges as to the reasonableness as to the time claimed. The general rule is whether the Claimant could reasonably be expected to travel to the Solicitor’s offices. Where the client is housebound or in hospital, it is clearly reasonable for his/her Solicitors to travel for personal attendance and the costs of which are clearly recoverable. As with all costs on the standard basis, a costs benefit analysis should be applied (Ledward v Kent & Medway Health Authority [2003] EWHC 2551 (QB)). However, be more mindful post-Covid; there will be an expectation of more video meetings in the future unless you can fully support personal attendance – clearly outlined on the attendance note!

 

Expert evidence (relied upon or not) – Paying Party’s will often take issue with claims for costs relating to expert evidence on which the Claimant has not relied upon; however, just because there was no reliance does not automatically mean that the costs cannot be recovered. This issue is dealt with in Francis –v- Francis & Dickerson [1956] All ER 836 which states that if the Solicitor acted in the best interest of his/her client in obtaining the evidence, then this would constitute reasonable and proper conduct and therefore, the burden of costs should not fall at the feet of the receiving party.

 

Research – General research is usually deemed unrecoverable on the basis that it should not be for the paying party to bear the costs of a Trainee Solicitor/paralegal to learn their trade. However, where research is required on novel points, outside the expected expertise, these costs can be recovered Perry v The Lord Chancellor (23 May 1994) Times, 26 May)

 

Photocopying – Will not generally be allowed as it is deemed an overhead subsumed within the Solicitor’s hourly rate. However, where printing is exceptional, the same can be recovered. CPD 4.16(5) – discretionary, unusual circumstances, unusually numerous. Only those amounts over and above that which would have been incurred in ‘normal circumstances’ will be recovered.

 

Aborted Calls and Letters In – Can’t usually be recovered; however, the leaving of a voice mail, coupled with an attendance note would usually be sufficient to justify recovery as would the consideration of a complex issue raised in incoming lengthy correspondence; this can often turn into progressive document work as long as the attendance note supports it

 

Supervision and delegation – Historically, it was generally accepted that no time should be recoverable in respect of solicitors liaising with one another, even where such discussion/delegations would ultimately result in a saving of costs. However, the issue was revived in the case of Fuseon Ltd R (On the Application of Shinners) [2020] EWHC B18 (Costs) where it was ruled that reasonable time spent in inter-fee discussions is properly allowable on the basis that it is difficult to delegate tasks to junior fee earners without proper instruction.

 

  1. CASE AND COSTS MANAGEMENT – Progressing your case efficiently

 

More and more firms are adopting a paper lite system particularly where remote working has become the norm. The transition to this method of practice has not come without teething problems; but generally, the better systems on the market are extremely useful tools where properly utilized. Irrespective of the chose software, taking a few hours to properly familiarize yourself with the functions and capabilities of your system is worthwhile as proper use will enable you to have a full, and detailed paper trail of your entire case which will benefit you from as early on as costs budgeting through to costs assessment.

 

Again, it is important to ensure that your time recording is accurate and up to date as this will greatly assist your costs draftsman to ensure that the costs can be properly claimed and allocated to the relevant phases where CMO’s are in place.

 

At R Costings, we will always assist and advise on how to maximise your costs recovery and endeavour to include all work incurred and detail in the bill to aide recovery – that is after all our trade; however, if the above is considered throughout the duration of a case, it will assist in the ensuring the best recovery of your costs.

 

By helping us to help you, the end result will be stress free profit increase every time.

 

Contact me at joe@rcostings.co.uk or 01480 220815

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