Daniella Duffy v Birmingham City Council

A solicitor’s signature on a bill of costs implicitly certifies compliance with the indemnity principle. The separate express certificate required by paragraph 5.21 of Practice Direction 47 is mandatory, but its omission is a procedural defect rather than a nullity. Under CPR 3.10, the bill remains effective to commence detailed assessment unless the court orders otherwise. The paying party must raise the defect through points of dispute and may seek discretionary relief under CPR 47.12(2). The defect does not automatically justify setting aside a default costs certificate under CPR 47.12(1).

The Council appealed from HH Judge Najib’s order of 29 November 2024, which had allowed the claimant’s appeal from District Judge Rouine. The District Judge had set aside a default costs certificate after finding that service of the notice of commencement and bill of costs by email was invalid. HH Judge Najib held that service was valid and remitted the Council’s discretionary application to set aside the certificate.

On the second appeal, the Council sought permission to withdraw its concession below and argue that the bill itself was invalid because the solicitor had not ticked the express indemnity-principle certificate. The central issue was whether that omission made the bill ineffective to commence detailed assessment under CPR 47.6.

Phillips LJ gave the leading judgment, with Nugee LJ and Newey LJ agreeing.

1. New point on appeal. The Council was permitted to withdraw its concession and raise the new point. It was a pure point of law, the claimant was prepared to meet it, and any prejudice could be compensated in costs: Pittalis v Grant [1989] 1 QB 605.
2. Indemnity principle. Although paragraph 5.21 of Practice Direction 47 makes the express certificate mandatory, the solicitor’s signature itself carries an implicit certification. The solicitor’s position as an officer of the court means that the signature certifies the bill’s contents, including the rates payable by the client. This followed the reasoning in General of Berne Insurance Company v Jardine Reinsurance Management Limited [1998] 2 All ER 301, Gundry v Sainsbury [1910] 1 KB 645, Bailey v IBC Vehicles Ltd [1998] 2 Costs LR 46 and Gempride Ltd v Bamrah [2018] EWCA Civ 1367.
3. Effect of the omission. Failure to tick the express certificate was no more fatal than other defects in a bill. CPR 3.10 applied to the costs rules, so the procedural error did not invalidate the bill or the commencement of detailed assessment. It could be remedied, and supporting evidence could be required if the omission raised suspicion.
4. Proper procedural route. Defects in a bill must be raised through points of dispute. A defective, even wholly deficient, bill may justify discretionary relief, including setting aside, striking out or replacing the bill, but does not create an automatic right to treat the proceedings as a nullity. The approach in Choudhury v Islam (Central London County Court, unreported 21 April 2021) was approved. The decisions in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC at High Court level [2021] EWHC 2607 (QB) and in the Court of Appeal [2022] Costs LR 1095 were consistent with that distinction.
5. Disposition. The bill was valid and effective to commence detailed assessment. The claimant was entitled to the default costs certificate because the Council had not served points of dispute within 21 days. The Council remained entitled to pursue its discretionary application under CPR 47.12(2), but the merits of that application were not determined. The appeal was dismissed.

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 146, dismissed the Council’s second appeal and confirmed that the bill was valid and effective to commence detailed assessment.
2. County Court at Birmingham: On 29 November 2024, HH Judge Najib allowed the claimant’s appeal from District Judge Rouine, held that service by email was valid, and remitted the Council’s discretionary application to a different district judge.
3. County Court at Birmingham: On 11 April 2024, District Judge Rouine found service invalid and set aside the default costs certificate.