AKC v Barking, Havering & Redbridge University Hospitals NHS Trust

A paper bill of costs need not identify individual fee earners by name. It must state any professional qualification relied upon and, unless the SCCO grade is supplied, the fee earner’s years of post-qualification experience.

An electronic bill, whether using Precedent S or another permitted spreadsheet format, must generally identify each fee earner by name, SCCO grade and any additional relevant status. A possible exception applies where work has been outsourced to an agency.

Non-compliance does not invariably make a bill a nullity or require it to be struck out. The appropriate sanction depends on the nature and practical effect of the deficiencies.

The claimant brought a clinical negligence claim against an NHS trust. Liability was admitted and quantum was settled. The trust was ordered to pay the claimant’s quantum costs.

The claimant commenced detailed assessment proceedings using a paper bill for work undertaken before April 2018 and an electronic bill for later work. The trust objected that the bills did not adequately identify the fee earners, their status or their SCCO grades.

A costs judge dismissed the trust’s application to strike out the bills. On appeal, Steyn J held that both bills were deficient, struck them out and ordered a compliant replacement: [2021] EWHC 2607 (QB). The claimant appealed against the rulings concerning fee-earner information, but no longer pursued a separate certification issue. The central questions concerned the information which paper and electronic bills must provide and the proper consequence of non-compliance.

1. The appeal was dismissed. The paper bill was deficient in one respect and the electronic bill did not comply with the applicable requirements. Steyn J was entitled to strike out the existing bill and require a replacement.

2. A paper bill governed by paragraph 5.11(2) of Practice Direction 47 need not identify fee earners by name. The provision does not expressly impose that requirement, and Precedent A permits fee earners and hourly rates to be described by categories. Naming fee earners is nevertheless desirable because it assists the paying party and the court.

3. A paper bill must give the status of the fee earners. Where a receiving party relies upon a professional qualification, the bill must state that qualification and, unless an SCCO grade is supplied, the years of post-qualification experience. There is no requirement to state that a fee earner lacks qualifications or post-qualification experience when none is relied upon. The claimant’s bill was deficient because it claimed a high rate for a partner without confirming a professional qualification or giving the partner’s post-qualification experience.

4. An electronic bill using Precedent S must generally provide enough information to complete its worksheets, including each fee earner’s name, SCCO grade and any status information which adds to the grade. A grade may itself convey qualification and experience, so duplication in the status column is unnecessary. Where work has been outsourced to an agency, the individual’s name may possibly be omitted.

5. An electronic bill in another spreadsheet format must provide as much information as a duly completed Precedent S. The requirement that it identify the detail of all work undertaken would otherwise give insufficient content to the prescribed format and frustrate the objective of making electronic bills more informative. Identifying individual fee earners also enables possible duplication, inconsistent time claims and the reasonableness of rates to be examined.

6. Practice Direction 47 carried authority in this context because CPR 47.6 expressly required bills and phase breakdowns as prescribed by it. General statements that practice directions cannot independently create legal obligations did not determine the present issue.

7. A defective bill should not invariably be struck out or treated as a nullity. Ordinarily, a lesser sanction may suffice. Here, the supplementary information still did not reliably connect particular work with the relevant individuals and grades. Striking out the bill was therefore within the judge’s discretion. Applications to admit the replacement bill and responsive points of dispute as new evidence were refused.

1. Court of Appeal (Civil Division): The claimant’s appeal was dismissed. The court upheld the order striking out the bill of costs and requiring a compliant replacement.
2. High Court, Queen’s Bench Division: Steyn J allowed the trust’s appeal, held the paper and electronic bills deficient, struck out the bill and ordered a replacement: [2021] EWHC 2607 (QB).
3. Senior Courts Costs Office: Costs Judge Nagalingam dismissed the trust’s application to strike out the bills.