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Case of note: Barking, Havering and Redbridge University Hospitals NHS Trust . AKC (High Court, 29 September 2021 – Steyn J. and Master Brown)

Date published:

This was a complex and high value clinical negligence case involving the treatment of a cerebral arterio-venous malformation in 2012.  The trust admitted liability and settlement received court approval in 2019.  Solicitors for the claimant submitted a bill of costs exceeding £1m.  NHS Resolution argued that this failed to comply with a number of requirements of the Civil Procedure Rules in that, for example, it did not give the name and status of each fee-earner or identify the work undertaken by them.  We sought to have the bill struck out.  Master Nagalingam in the Senior Court Costs Office declined to do so.  Our appeal was heard by a High Court judge with a Costs judge sitting as assessor.

Mrs Justice Steyn held that the identity of the person signing off the bill should be declared and expressed “some astonishment” that this had not been done.  She also decided that each fee-earner’s status and hourly rate should be included in the bill, rather than work being ascribed to a generic category of fee-earner, and that all names should be supplied.  Anything less rendered a bill “intolerably opaque”.  Finally, the qualifications and years of post-qualification experience for each fee-earner must be given.

Comment

We have seen an increasing tendency for some firms of claimant solicitors to supply bills which do not give sufficient detail to enable adequate scrutiny to take place.  That results in the need for probing questions, to which full answers are not always given, and causes delay.  This is therefore a very important ruling which clearly sets down the required standards.   For example, bundling fee-earners together under a label such as “legal executives” is not transparent and does not permit analysis of precisely who was doing what work on a file or for how long.   It potentially obscures work which is not recoverable from the paying party.  As a result of this judgment, there should be far greater transparency in future which will help to reduce scope for disputation, accelerate the consideration of bills, and therefore serve to reduce costs overall for the National Health Service.

It should be noted that this dispute was all about legal costs, and did not affect the agreed damages settlement in any way.

Very recently, we have learned that the claimant’s solicitors are seeking permission to appeal against this ruling, so we may not be quite at the end of the story yet.