Court of Appeal decision specifies what information is required in bills of costs

All firms should consider whether they include the requisite information in bills of costs

The Court of Appeal has handed down an important decision which provides essential guidance to firms on what information must be set out in both paper and electronic bills of costs.

The judgment in AKC v Barking, Havering & Redbridge University Hospitals NHS Trust [2022] EWCA Civ 630 was handed down on 10 May 2022.

The appeal concerned a 2021 decision of Justice Steyn ([2021] EWHC 2607 (QB)) and raised the question as to how a bill of costs must be framed. 

In 2015, the appellant (AKC) made a clinical negligence claim against the respondent (the Trust). The Trust admitted liability and AKC's liability costs were agreed and met by the Trust. The parties reached agreement on quantum and an order was made which approved the settlement and required the Trust to pay AKC's quantum costs. 

In 2019, the appellant commenced detailed assessment proceedings in respect of her quantum costs. Her bill of costs comprised a paper and electronic bill.

The Trust disputed the bill on several points: firstly, that it was not properly certified; secondly, that the paper bill failed to provide the name and status (including qualification and years of post-qualification experience) of each fee earner for whom costs were claimed; and thirdly, the electronic bill failed to provide the name, status and Senior Courts Costs Office (SCCO) grade for each fee earner. 

The Trust applied for the bill of costs to be struck out and for AKC to be required to serve a new bill. Steyn J allowed an appeal.

She concluded AKC's bill of costs was not duly certified and neither the paper bill nor the electronic bill contained all the necessary information about fee earners. The bill of costs was struck out and AKC was ordered to serve a compliant replacement.

On 3 November 2021, AKC served a new bill of costs; however, she also challenged Steyn J's decision in so far as she held that the original bill was deficient in the information it gave about fee earners. The certification issue was dropped.

However, the appellant’s appeal was dismissed.

In relation to the paper bill of costs, the Court of Appeal held:

·       it is “desirable” fee earners are named in paper bills; however, they do not have to be;

·       a description of each fee earner’s ‘status’ must be set out and should include "their professional qualification (if any) and (if the SCCO grade is not given) their number of years of post-qualification experience";

·       a receiving party does not have to specify any qualifications or post-qualification experience of a fee earner where none is relied on – the receiving party does not have to spell out the absence of any qualification or post-qualification experience. 

In relation to electronic bill of costs, the Court of Appeal held “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”.

Jack Ridgway, chair of the Association of Costs Lawyers, commented: “It is good news that the Court of Appeal recognises the need to issue guidance on bills of costs, especially as many lawyers are still getting to grips with the electronic bill.

“The outcome here achieves a sensible balance – providing more upfront information about the fee-earners who worked on a matter will help resolve cases more quickly without unnecessary toing and froing between the parties.”

Simon Browne QC of 39 Essex Chambers and Matthew Waszak of 4 New Square were instructed by Irwin Mitchell for AKC. Robert Marven QC of 4 New Square was instructed by Keoghs for the Trust.