Landmark judgment: Identity of fee earners must be provided

AKC (a protected party by litigation friend MCK) v Barking, Havering and Redbridge University Hospitals NHS Trust. (Court of Appeal – 10 May 2022)

The Court of Appeal dismissed the appeal against the order of Steyn J dated 29 September 2021 arising from her judgment that receiving parties can no longer withhold basic information as to who has done the work claimed within a bill of costs.

The judgment confirms information as to the identity, grade, professional qualification and post qualification experience of each fee earner and hourly rates must be provided in relation to the work claimed within a bill of costs.

Circumstances

The claimant served a bill of costs of £1,040,412 in which the defendant identified the following issues:

1. The identity of the signatory to the certificate to the bill had not been provided;
2. The identity of each fee earner for whom work was claimed, their grade, qualification and number of years post qualification experience had not been provided contrary to PD 5.11(2) to CPR 47; and
3. Failure to provide the identity of each fee earner for whom work is claimed, their grade, qualification and number of years post qualification experience in accordance with PD 5.A2 to CPR 47.

The defendant served points of dispute raising objection by way of preliminary issues requesting the information be provided within 14 days, failing which the defendant would apply for an order that the bill of costs do stand struck out for non-compliance to the extent to which it is not otherwise sensibly remediable other than by redrafting the bill.

The claimant refuted there was an obligation to provide the information under the rules.

Application

The defendant made an application to strike out the bill of costs and for an order that the claimant should serve a CPR compliant bill. At first instance, Master Nagalingam dismissed the application finding:

• Certification: There was no requirement in rules or Precedent F that the person certifying the bill be named.
• Paper Bill: PD 5.11(2) of CPR 47 PD does not expressly require that fee earners be named and rejected the contention that such a requirement may be inferred.
• Electronic Bill: An electronic bill must have the same functionality as Precedent S, but it is not required to mimic precisely the format of Precedent S. He considered that “the rules and practice directions do not impose a procedural requirement to name fee earners”.

The defendant appealed on the basis that the Master was wrong in law.

Judgment on first appeal

In a reserved judgment handed down on 29 September 2021, Mrs Justice Steyn allowed the appeal on all three issues finding:

1. The identity of the signatory to the certificate must be readily identifiable on the face of the certificate.
2. Both paper and electronic bills must include the identity of each fee earner together with a description of their status, including professional qualification (if any) and number of years of post-qualification experience.
3. Electronic bills must include the SCCO grade of each fee earner.

The claimant appealed the second and third findings on the basis that the CPR does not give rise or allow the interpretations imposed by the judge as to the required fee earner information.

Appeal to Court of Appeal

The Court of Appeal dismissed the appeal finding;

1. Paper bills do not strictly have to include fee earners’ names. However, it is desirable that they should as doing so can be of help to both the paying party and the court, and it is hard to think of a good reason for withholding the identity of fee earners.
2. Paper bills must state any professional qualification of a fee earner and, unless the SCCO grade is given, the years of post-qualification experience.
3. Electronic bills must include, among other things, the name of each fee earner, the SCCO grade and, in so far as it adds anything, the status of each fee earner such as Solicitor or Chartered Legal Executive.

Lord Justice Newey said:

“50.        The upshot is that, in my view, any electronic bill, whether in Precedent S spreadsheet format or any other spreadsheet format, must include the name, the SCCO grade and, in so far as it adds anything to the grade, the status of each fee earner except possibly in so far as the receiving party’s solicitors may have outsourced work to an agency.”

Keoghs comment

NHS Resolution has seen an increase in the behaviour of some claimant firms to withhold relevant information required for the assessment of costs. This behaviour masks items that are likely to be disallowed or reduced if more readily identifiable.

Steyn J identified the issue as follows:

“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.”

Lord Justice Newey agreed.

All bills of costs need to provide the necessary detail (name, grade, professional qualification and post qualification experience) to allow the parties and the court to understand the costs being claimed in a clear, transparent and intelligible way.

This judgment should result in far greater transparency in future bills that will accelerate assessment and resolution of costs claims and reduce costs paid by the National Health Service.

Keoghs represented the defendant; if any further information is required, please contact either Howard Dean or Ben Petrecz.