This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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COSTS JUDGE NAGALINGAM
Costs Judge Nagalingam:
- This is a written judgment arising from a case management direction to assess elements of the bill of costs whilst sitting in private, but with the benefit of oral submissions and reference to relevant bundles. Whilst the primary purpose of this approach concerns avoidance of a disproportionate approach to the assessment of time spent on documents, this judgment also summarises some of the decisions made during the first 3 days of the detailed assessment as well as setting out my assessment of some additional points heard.
- General points 1 to 5 were addressed in oral submissions before me on the first three days of this assessment.
- Whilst not named as such in the combined points dispute / points of reply, the remaining 'standard' points proceed from "Point 1". Any references below to "Point" followed by a number are references to the 'standard' points, not the 'general' points.
- References to "Claimant" meant the Second Claimant (unless specified otherwise).
Point 1 communications with the Claimant
- For the avoidance of doubt, I concluded that the only part of the objection that survived was in relation to items 1278-1279, which have already been assessed.
Point 2 communications with counsel
- The application of A2 filtering to column P of tab 14 of the e-bill results in a claim for 12.6 hours for communications with counsel concerning the Second Claimant's quantum only claim.
- 1.6 hours of that time is subject to a moiety (1.3 hours Grade A and 0.3 hours Grade D).
- The balance of 11 hours is applied 100% to this claim, split as 8.3 Grade A hours, 0.2 Grade B hours, and 2.5 Grade D hours.
- It is not apparent to me that any of the items under Point 2 post-date the authority for costs. Until the final terms of the order were sealed, costs incurred prior to that date are recoverable in principle and rightly appear in the bill rather than in a later statement of assessment costs.
- The parties will observe that further below, I have disallowed fees relating to the use of leading counsel. That must be reflected in my allowance in this phase, and when taking into account the Defendant's offer of 6 hours.
- In terms of the items to which a moiety has been applied I am unconcerned by the apportionment used on the basis it is no more than 50% applied to the index quantum claim. However, the time is unreasonable in amount and is reduced to 1 hour at Grade A and 0.2 hours at Grade D (as against the 1.3 hours Grade A and 0.3 hours Grade D claimed).
- The remaining 11 hours is reduced by 40% such that I allow 5 hours of Grade A, nil Grade B and 1.5 hours of Grade D for the non-moiety items.
- The reductions account for the non-engagement of leading counsel, inefficient ways of working (over-reliance on the use of e-mails rather than calls, and notwithstanding periods where lockdown rules were in place) and recognising that the time is unreasonable in amount when considered in light of the allowable engagements of counsel relatable to quantum only.
- I have also taken into account times claimed in work done on documents in instructing counsel.
Point 3 communications with internal legal team
- As indicated during the first 3 days of the hearing, I am concerned by the internal time claimed and made it clear to Mr Scott this represents a section of the bill vulnerable to proportionality reductions if this assessment is not compromised, or the line by line assessment results in a disproportionate figure.
- However, in the first instance I am bound to consider the procedural effectiveness of the point as raised.
- With reference to the case law cited by the Defendant in their points of dispute, there is a distinction to be drawn between a case largely run by a lower grade/s which required recoverable supervisory input from a higher grade, versus a claim where the highest grade is running the case and deferring to lower grades from time to time.
- Where the senior fee earner delegates certain tasks, it must not lead to increased costs in monetary terms as compared with the senior fee earner undertaking the task personally.
- Notwithstanding Mr Scott's arguments to the contrary, it is undoubtedly the case that this matter was run by Mr Preston, and that no single named fee earner has incurred more hours on this file than Mr Preston. It is thus a case of Mr Preston delegating certain tasks in a matter which he was leading, rather than checking the work of a junior fee earner running their own matters.
- With regards to the 6 categories of work which the Defendant submits are not recoverable, I comment as follows.
- Travel arrangements I filtered for activity A8 and column E for "travel". Rather than this being travel arrangements as a litigation cost, the work relates to travel arrangements relatable to the schedule of loss. Allow the 0.65 hours (which includes one moiety item as claimed).
- Delegation of work 34.45 hours of time has been isolated using activity A8 and "delega" in column E. 31.96 hours of this is Mr Preston. Notwithstanding my concerns expressed above regarding the sheer amount of time in this section of costs, the points of dispute invite a general ruling that costs of delegation are not recoverable. I disagree. Delegation, whether it be by way of memo or internal discussion, cannot be achieved without some communication medium. Thus, as a matter of principle, spending time engaged in delegation is recoverable.
- Allocation of work "allocate" nor "allocation" appear in the descriptions of work done in this section of items. I cannot therefore account for reductions in the allocation of work where the Defendant has not been clear where such time arises.
- Collation of documentation 1.6 hours of time identified using activity A8 and column E for "colla". The identified time is reasonably incurred and reasonable in amount.
- Administrative work with Sharefile 3.2 hours of time identified using activity A8 and column E for "share". The majority of the time is administrative in my view. Allow 0.6 hours at Grade D.
- Password issues 2.0 hours of time identified but this includes 1.5 hours of time in which Sharefile was also considered. Time properly attributable to passwords is administrative and should be disallowed.
- The objection proceeds to set out that "Further, a number of items of work will have been duplicated with routine communications out with the various parties for example, this would relate to the following types of work", and that "Additionally, a significant proportion of work has already been claimed in the plan, prepare, draft and review parts of the Bill".
- These are essentially arguments of duplication. However, the Defendant has neglected to identify precisely where in the bill duplication has arisen. The quoted passages above amount to speculation, leaving the court to identify actual examples of duplication. The court will not do this, and the Defendant's opportunity to highlight where they say duplication has arisen (by reference to item numbers which demonstrate the same work being repeated / over-worked) has long passed.
- As a matter of principle, I cannot apply reductions for duplication where it is not obvious to me where in the bill such duplication has occurred, or where it is not adequately identified.
- The Defendant is thus left to pursue a fallback argument which is simply set out as "the Defendant submits the time sought of 93.25 hours is excessive" and thereafter pleads that if "the Court deems this time is recoverable on principle, the Court is asked to allow [a] reasonable and proportionate amount to take into account the issues previously raised in respect of the Claimant's conduct."
- This is far too broad an invitation. In some cases, 93.25 hours may represent the entire main action time incurred. Paying parties cannot expect a single paragraph objection to so much time to yield reductions, especially where it is asking the court to arrive at a figure rather than expressing an amount offered which is wholly referable to the point raised.
- It seems to me that the Defendant has assumed their primary arguments seeking all internal communication be disallowed would succeed, and has neglected to fully articulate their argument in the alternative.
- Absent the paying party having discerned which items they challenge in the alternative, and how much they proposed be allowed, the receiving party has been denied the opportunity to consider such proposals and narrow the issues. It also leaves the court to conduct such a discernment exercise on behalf of the Defendant which I decline to do.
- The outcome is that I do not consider Point 3 protects the Defendant in achieving reductions greater than those outlined above.
- However, as I expressed during the hearing, the Claimant would be wise not to consider this a victory. I stated that this was the highest claim for internal communication I had ever seen and if I am asked to reduce the assessed sum on the grounds of proportionality then this is very likely a tranche of costs upon which my focus will fall.
Point 4 Plan, prepare, draft and review (documents)
- Due to the sheer volume of work done on documents, and by extension the sheer volume of items challenged, I concluded that a line by line assessment of this tranche of costs would be disproportionate and an unwise use of the court's resources and advocates' time.
- In any event, the Claimant's replies do not descend into a detailed item by item response but instead maintain the time as claimed. I therefore invited the advocates to make general submissions, citing examples as necessary, following which I adjourned the assessment so I may sit in private to consider the challenges alongside the bundles lodged on behalf of the Claimant.
- Mr Scott, for the receiving party, was invited to provide bundle and page references as he wished but was otherwise advised I would navigate the bundles, which have been arranged to account for each of the broader point numbers as set out in the objections.
- For the avoidance of doubt, and with the aid of the helpful document produced by Ms McDonald, I have ensured that those items which are not challenged at all are excluded from any reductions in time applied.
- For filtering purposes I have isolated A10 in column P, and excluded P15 from column N. Whilst I acknowledge that some of the items under phase 15 are included within the challenge under Point 4, I consider they are better addressed when considering Point 5 (items 3617 and 3620).
- The parties simply need to account for the fact that my documents time assessment excludes challenged time in phase 15, such that any challenged time in phase 15 should be addressed when the assessment resumes (at Point 5). That in part is also reflective of the fact that whilst the Defendant has made an hours based offer in relation to the time on documents (exclusive of items relating to costs schedules and the bill of costs), the proposal regarding the costs schedule is in monetary / percentage terms, hence my conclusion I should assess that tranche of items separately.
- Having excluded phase 15, the starting point is a claim for 516.3 hours, broken down as:
| Name |
Grade |
Time claimed (hours) |
| Charlie Holt |
D |
0.3 |
| David Preston |
B |
27.78 |
| David Preston |
A |
205.57 |
| Isabella Lumsden |
D |
0.2 |
| Jade Griffiths |
D |
0.6 |
| Paris Herbert-Hunt |
D |
137.12 |
| Sandra Boye-Clarkson |
D |
81.3 |
| Sam Todd |
D |
63.23 |
| Teresa Theodore |
D |
0.2 |
- In summary, that's 205.57 hours of Grade A time (60 hours offered), 27.78 hours of Grade B time (10 hours offered), nil hours of Grade C time (12 hours offered), and 282.95 hours of Grade D time (100 hours offered).
Parties' proposals
- The paying party's overall offer is 182 hours against a claim for 516.3 hours. There are 65.82 hours of unchallenged items, which are of course incorporated into the offer of 182 hours.
- No concessions are made in the replies, nor were any offered by Mr Scott during the hearing. The Claimant's stance is therefore taken to be that 100% of the claimed time on documents is maintained.
Moiety items
- My assessment deals with the items subject to a moiety separately, so there is certainty in this regard. Once the undisputed items to which a moiety has been applied are excluded, there are 6.75 hours of time to consider (item numbers 9, 12, 13, 17, 19, 25, 111, 371, 374, 727, 756, 1433, 1440, 1442, 1447, 1448, 1452, 1487, 2399, 2717, 3427, 3450 and 3451). I have concluded there is no option but to deal with those items on an individual basis and my decisions in that regard are reflected in the table below.
Non-moiety items
- In respect of the items to which 100% of the time is applied in this matter, I remind myself that the index accident has given rise to claims brought by three separate claimants, all of whom are represented by Leigh Day.
- There is quantum bill before me in respect of the Second Claimant. Liability is being dealt with as a joint instruction and there will be a separate and distinct liability only bill. The other claimants will also have their own quantum only costs.
- The time on documents I assess now concerns the quantum only costs of the Second Claimant.
- The points of dispute address the following broad categories of objections:
- Excessive for the work done (i.e. where time has been reasonably incurred but the Defendant argues is unreasonable in amount).
- Items which should be excluded from the Second Claimant's quantum only bill. I.e. items which should be transferred to another bill.
- Specifically excessive time in the preparation of file notes.
- Duplication i.e. where the same work has been done earlier / elsewhere (which has been identified) such that any further time relating to the same task or document should be reduced or disallowed.
- Time in non-legal research which might not be expected of a specialist PI RTC department.
- Time spent in legal research.
- Time relating to the choice of solicitor.
- Time relating to the use of a translator in addition to communication with translators.
- Forms of authority/consent forms whether administrative and/or subsumed into outgoing letters.
- Concern as to whether certain timed items are in fact routine in nature.
- Time caused by a change of fee earner.
- Whether the use of an action plan / case plan is recoverable inter partes.
- Time reviewing dental records.
- Time which is administrative.
- Time reviewing case management records.
- Time preparing instructions to counsel.
- Whether collation of documents is administrative.
- Time in preparing the schedule of loss, taking into account the use of counsel and ultimate settlement sum.
- Time claimed in communications in addition to communications time claimed elsewhere in the bill.
- Whether consideration of the benefits position is recoverable inter partes.
- Internal discussions over and above those claimed elsewhere.
- Time in review of physiotherapy records, financial records and psychology records.
- Time spent considering DWP position / records.
- Time spent in obtaining records over and above the time already claimed elsewhere, eg drafting letter to GP.
- Time spent in considering Medacs and Care Outlook records.
- Use of internal tables to ascertain availability.
- Time in instructions to Mr Hull.
- Perusal of incoming correspondence.
- Time spent reviewing reports.
- Time spent in delegation of work.
- Time spent considering the care report.
- Whether pagination is an administrative task.
- Time spent in relation to the terms of the quantum settlement order.
Approach adopted
- By excluding both items which are not disputed, and items to which a moiety has been applied, the residual time totals 443.73 hours. I have accounted for allowances/reductions against that amount of time. The undisputed time and moiety allowances have then been added to give final figures per grade for work done on documents (excluding phase 15).
- Where filtering has been applied to isolate a category of challenge, I have taken care to account for entries where more than one distinct category of work has been undertaken so as to avoid the risk of double reductions (save for where it is justified). This is important so as to avoid any risk of less than zero being allowed for an item, or to avoid the sum total of an item being unfairly discounted to a level which does not reflect the sum of its parts.
My general observations
- Procedurally, the quantum aspect of the Claimant's claim was straightforward. This meant work could be focused on valuing the claim and obtaining evidence to support the Claimant's losses.
- The Claimant's solicitors took a leading role in preparing the schedule of loss, albeit past losses were calculated at a fairly modest Ģ51k approximately, with the bulk of future losses marked as "TBC" save for those related to future medical treatments, which were quantifiable at the time.
- The particulars of claim cover all three claimants and largely focuses on liability, with little over one full page of text devoted to the Second Claimant's injuries. The defence is virtually entirely focused on liability and allegations of contributory negligence.
- Directions were straightforward and ultimately the Second Claimant's quantum was agreed without a formal CCMC having taken place, meaning that the Second Claimant's claim was never budgeted in terms of her quantum dispute.
- In terms of witness evidence, there are limited and very short statements on behalf of the Defendant relating to the surveillance evidence obtained. There are three witness statements on behalf of the Second Claimant, including her own. They are each lengthy and detailed.
- There are 11 expert reports from the Defendant addressing care, orthopaedics and psychiatry, and running to some 246 pages. The Claimant's expert evidence runs to some 345 pages. There are of course additional engagements regarding expert evidence via correspondence and in conferences.
- Whilst I am not of the view that the medical records are for the perusal of experts only, nor does the Defendant argue as such, where time in consideration of records has been challenged I have accounted for the fact those very same records have been considered by experts and commented upon.
Objections seeking disallowance
- There are in fact few items where the Defendant argues for nil recovery, and where they do the reasons are well explained. Turning to those categories of work first I comment as follows.
Work that should not be in the quantum only bill of the Second Claimant
- Items which it is argued should not be in this quantum only bill were restricted to those times where a moiety is claimed. Any reductions for where I consider work should not appear in this bill are addressed in the moiety table of decisions below.
Delegation
- Whilst the use of lower grades of fee earner is to be encouraged, that should not be to the detriment of expediency and efficiency. Delegation ought to be done with care. Having said that, I acknowledge that the Grade D rate allowed is 37% of the Grade A rate, such that where an experienced fee earner could have undertaken the same task in a third of the time, the net effect will be negligible.
Duplication
- Duplication is a concern in this matter. Over the course of a long running case some changes in fee earner involvement are inevitable. However, this was not a case lacking complexity or challenge, and there are too many occasions in which I consider a Grade D fee earner has been needlessly involved given Mr Preston was quite rightly running the case, and the sheer number of referrals to Mr Ford (counsel).
- Similarly, save for a fairly light supervisory touch, there is little to no justification in Mr Preston becoming involved in the more basic aspects of running a case when he had capable Grade D assistants to defer to.
Legal Research
- No allowance is made for the limited time spent in research. That is on the basis one cannot hold themselves out as being specialist without utilising the benefit of gained knowledge when engaging experts and suitable counsel.
Consent forms / forms of authority
- I do not agree that the preparation of consent forms / forms of authority are an administrative task. These are important documents which must be accurate if they are to achieve their purpose. Often each holder of records will have their own requirements which must be fulfilled.
- I also do not agree that the cost of preparation of such a document should be subsumed into the cost of the outgoing correspondence sending the same.
Change of fee earner
- I have not made any reductions for a change of fee earner. Mr Preston was the constant guiding hand in this matter, and whilst at first glance there were a number of supporting fee earners, the reality is there were three Grade D assistants who provided the main support. Given the conduct period, changes in staff were inevitable and the paying party must accept the realities of practice in that regard.
Case / Action Plan
- I do not agree that the use of a case plan / action plan is irrecoverable per se. However, the utility of such a document is only effective where it saves time.
Sharelink, passwords and pagination
- I have concluded that time spent in relation to 'sharelink', passwords and pagination are examples of purely administrative work such that time relating to the same ought to be disallowed.
Collation
- I do not consider that collating documents is purely administrative work but one must be careful to discern between the important fee earner task of selecting documents for relevance, and simply reproducing a list of documents upon direction from another.
Incoming correspondence
- Perusal of incoming correspondence is not recoverable inter partes but the impact of this on the time claimed is negligible.
Work where the time sought is unreasonable
- 'Excessive for the work done, i.e. where time has been reasonably incurred but the Defendant argues is unreasonable in amount'
There are multiple occasions in which time has been reasonably incurred but is unreasonable in amount. However, in order to avoid double or multiple reductions applying to the same item, I have taken care to consider arguments as to whether the time claimed is excessive in the context of the paying party's other and various multiple arguments.
- 'Items which should be excluded from the Second Claimant's quantum only bill (i.e.) items which should be transferred to another bill'
Aside from the items to which a moiety has already been applied, I have not identified any items which should be transferred to another bill.
- 'Specifically excessive time in the preparation of file notes'
i) With regards to the large block of identified items (various items from 13, 17, 18.. through to items ..3569, 3571, 3620) it was contended by Mr Scott that this relates to the element of time within these items in preparing file notes.
ii) Ms McDonald contended that the offer of 5 hours (as against the 128.8 hours this block of time amounts to) was not limited to the element for the drafting of file notes only but in fact as against all of the work claimed.
iii) In fact, several of those same items from the listed block of items are challenged elsewhere in the points of dispute for different reasons. I have therefore concluded that the objection in relation to this block of items is not sufficiently unambiguous if the intention was to challenge all of the items rather than the element of the same which relates to the preparation of attendance notes only.
iv) In so far as some of these items are at risk of reductions on the basis the time is excessive for the work done, I have concluded that in terms of attendance notes the Claimant has acted reasonably in terms of the time claimed.
v) In certain instances, the item number within the identified block is in fact related to the drafting of the note only. Where it isn't, the note itself is either very detailed (and not unreasonably so) or is part of a claim for time which also deals with other matters challenged elsewhere.
vi) I have concluded that no reduction should apply to the items listed in the block of items referenced on the basis of time engaged drafting file/attendance notes. That does not mean those items are all allowed as claimed. Where those items are challenged for different reasons elsewhere, I have taken this into account.
- 'Duplication i.e. where the same work has been done earlier / elsewhere (which has been identified) such that any further time relating to the same task or document should be reduced or disallowed'
See above. This is a line of argument which cross references with many of the other arguments made. I have taken into account the use of counsel throughout when considering the reasonableness of the Grade A time. I have also taken into account the heavy involvement of Mr Preston (as Grade B and then A) when considering the reasonableness of the Grade D time.
- 'Time in non-legal research which might not be expected of a specialist PI RTC department'
Reasonably incurred time in the consideration of potential case managers. However, I do consider Grade D time researching experts is unreasonable in amount.
- 'Time spent in legal research'
See comments above. Reductions will be applied to Grade D time.
'Time relating to the choice of solicitor'
I have not made any reductions which are related to the choice of solicitor. I concluded that the choice of solicitor was reasonable and thus the fact that the fee earner was not fluent in Turkish or not immediately local to the Claimant has not had a bearing on the time on documents allowed.
- 'Time relating to the use of a translator in addition to communication with translators'
Time relating to the use of a translator is modest but an element of such time is administrative and therefore accounts for part of the reduced time allowed.
- 'Forms of authority/consent forms whether administrative and/or subsumed into outgoing letters'
Recoverable in principle (see above). However, elements of Grade B time engaged in such work has been transferred to the Grade D time allowance. Time also reduced where unreasonable in amount.
- 'Concern as to whether certain timed items are in fact routine in nature'
I have observed limited examples of time in preparation of timed communication which appear to be routine in nature, such that no more than one unit is reasonable in any such instances. The impact on the overall time claimed is minimal.
- 'Time caused by a change of fee earner'
I do not accept there was any material change of fee earner in this matter. Mr Preston was the lead fee earner throughout. I do accept there was some changes to whom the supporting fee earners were. However, any time that might be reduced in that regard has already been considered where relevant identified items have also been challenged on the grounds of delegation, collation or duplication.
Therefore no reductions applied for a change of fee earner.
- 'Whether the use of an action plan / case plan is recoverable inter partes'
Recoverable in principle (see above) but given the frequency with which the file was worked on, the use of counsel to aid in strategy and the matters dealt with in this quantum only bill, the time is unreasonable in amount.
- 'Time reviewing records'
With regards to challenged time in consideration of records (including medical, benefits and cases management records), the time claimed is unreasonable in amount, demonstrates the engagement of Grade D fee earners in tasks that experts, Mr Preston and Counsel were rightly also engaged in, leading to duplication, as well as duplication of effort between Grade D fee earners. The time spent is also unreasonable in amount. This has contributed to reduction in time allowed on documents for grades A, B and D.
- 'Time which is administrative'
Of the objections which identify time which is "administrative" or time spent in "administration", and does not already fall under other categories of work to which reductions have been accounted for, the following reductions shall apply.
i) 1.1 hours of Grade A time to be allowed as Grade D time.
ii) I do not consider Mr Preston (as Grade B) considering the case management records to be administrative.
iii) Grade D time identified under this category does include items which are purely administrative in nature and reductions to Grade D hours shall apply to reflect this.
- 'Time preparing instructions to counsel'
i) With regards to instructions to counsel, I recognise that by disallowing leading counsel's involvement in the quantum only element of this Claimant's bill I must also account for the fact that Mr Ford remained instructed (and on a joint basis), such that it does not automatically follow that instructions to leading counsel will be disallowed where Mr Ford would have been instructed in the alternative (or in any event).
ii) Instead, I have accounted for what time I consider has been reasonably incurred in light of Mr Ford's involvement only (following disallowance of leading counsel's involvement). I also have the benefit of the instructions in the bundles provided.
iii) My allowances below focus on the actual drafting of instructions to counsel, not the ancillary work concerning accompanying documents (bundles, index etc).
iv) The actual Grade A time engaged in drafting instructions to counsel (excluding time associated with accompanying documents) is reasonable and allowed as claimed. However, Grade D time is subject to reductions which reflect the level of Grade A involvement in drafting instructions to counsel.
- 'Whether collation of documents is administrative'
i) All time in collation of documents was undertaken by Grade D fee earners save for 1.1 hours of Grade A time, which I allow as claimed because I consider a modest level of Grade A involvement in the selection of documents for relevance is reasonable.
ii) The remaining time spent (at Grade D) in collating documents or records is far too high. Often this was done on the basis of delegated instructions from the lead fee earner and at that stage became administrative in nature, i.e. undertaking a physical task where a senior fee earner has already turned their mind to the intellectual demands of what needed to be collated.
iii) I have also taken into account the repetitive nature of some of the collation required, and a reasonable expectation of records and documents being kept in good order. There is also the fact that time is claimed elsewhere (where relevant) for associated indexes, pagination and bundling.
iv) Reduction applied to reflect administrative and excessive Grade D time in relation to collation of documents.
- 'Time in preparing the schedule of loss, taking into account the use of counsel and ultimate settlement sum'
i) A significant proportion of the challenged time claimed concerns the schedule of loss. Given the level of Grade A and counsel involvement in the schedule of loss, and the challenging nature of this pleading (in this case), I am concerned as to the utility of involving Grade D fee earners so heavily in this important and key task.
ii) Mr Preston's understandable involvement in preparation of the schedule of loss and liaison with counsel in respect of the same demonstrates he had substantively turned his mind to the same in late 2019 and early 2020.
iii) Mr Preston was also substantially involved when counsel was engaged to update and prepare the schedule of loss for final presentation at the JSM (and in a form which would otherwise have been filed).
iv) Whilst being careful not to duplicate reductions, and whilst acknowledging that elements of calculating the Claimant losses (such as travel expenses) were reasonably delegated to a lower grade of fee earner, the time claimed is unreasonable in amount and significantly so.
v) The Grade A time in the latter part of 2022 is also unreasonable in amount given the engagement of counsel to assist during this period (and for which fees have been allowed).
- 'Time claimed in communications in addition to communications time claimed elsewhere in the bill'
I do not consider any of the examples identified in the points of dispute amount to time in communications being counted twice. Time in longer letters/e-mails is correctly claimed in documents time. Aside from that, time engaged in preparing documents to accompany outgoing communications has been accounted for where that time has been challenged for other reasons (e.g. administrative or excessive).
- 'Whether consideration of the benefits position is recoverable inter partes'
The associated time is modest and at Grade D. One cannot calculate a claimant's losses without considering the benefits position and the amount that may need to be repaid / recouped from settlement monies.
- 'Internal discussions over and above those claimed elsewhere'
The objections include at least one item which doesn't fall within work done on documents. The remaining identified items either do not warrant a reduction or have already been taken into account elsewhere under this point. No reductions to apply for this purpose.
- 'Time in review of physiotherapy records, financial records and psychology records'
In so far as this relates to Grade D time, the time claimed is unreasonable in amount. This has been factored in to the overall allowance made.
- Time spent considering DWP position / records
I do not consider time in consideration of DWP / records to be irrecoverable inter partes per se. However, I do consider the time spent in this regard to be unreasonable in amount.
- 'Time spent in obtaining records over and above the time already claimed elsewhere, e.g. drafting letter to GP'
A modest element of the Grade D time relating to GP records is either unreasonably incurred or unreasonable in amount.
- 'Time spent in considering Medacs and Care Outlook records'
The overall time spent is too high. This is reflected in reductions to Grade D time below.
- 'Use of internal tables to ascertain availability'
The use of a table to aid in managing availability of key persons is a tool the Claimant was entitled to deploy. However, I disagree it has saved costs. The coordination of available dates is often administrative in nature, requiring nothing more than a light fee earner touch. An element of the time reductions takes this into account.
- 'Time in instructions to Mr Hull'
The Grade A time instructing Mr Hull is reasonable. Reductions will apply to Grade D time which is unreasonable in amount. Any reductions based on reasonableness for time relating to Mr Hull claimed elsewhere has been accounted for where relevant, e.g. bundles, records, indexes, reviewing report/s.
- 'Perusal of incoming correspondence'
Only one such incidence is in fact identified in the points of dispute (item 2300). The 0.1 hour of Grade D time is disallowed.
- 'Time spent reviewing reports (generally, excluding care report see below)'
i) As one would reasonably expect, the majority of the time in consideration of expert reports (and associated documents) in this matter is Mr Preston's. However, there is not an insignificant level of Grade D time in addition.
ii) One also takes into account the use of counsel to advise and in conference.
iii) The time in consideration of reports (excluding the care report which is referenced below) is unreasonable in amount. This is reflected in reductions to time and grades A, B and D.
- 'Time spent in delegation of work'
i) I took into account time described as meetings (between fee earners) within the time on documents as part of time claimed in delegation.
ii) In consistency with my conclusions as to the matters with which lower grades of fee earner were reasonably deployed, and in consideration of a reasonable level of time to delegate tasks down, modest reductions to Grade A time will apply.
iii) With regards to Grade D time, I am alive to the fact that many of the items which mention delegation or meetings also include time doing the actual work thereafter. In the circumstances, the actual time claimed is relatively modest and I am not minded to make reductions to the Grade D time for considering what was required before the fee earner did the task in question.
- 'Time spent considering the care report'
Both the associated Grade A and Grade D time is unreasonable in amount.
- 'Whether pagination is an administrative task'
See above. Modest Grade D time reductions applied.
- 'Time spent in relation to the terms of the quantum settlement order'
Reasonable to engage in some residual work pertaining to the order terms. However, the associated Grade A time is unreasonable in amount.
Moiety items
- As to the items to which a moiety has been applied, I make the following post-moiety allowances:
| Item No |
Decision / Allowance |
| 9 |
Allow 0.4 |
| 12 |
Disallow |
| 13 |
Disallow |
| 17 |
Disallow |
| 19 |
Disallow |
| 25 |
Allow 0.2 |
| 111 |
Allow 0.2 |
| 371 |
Allow 1.5 |
| 374 |
Allow as claimed |
| 727 |
Allow as claimed |
| 756 |
Allow as claimed |
| 1433 |
Allow 0.1 |
| 1440 |
Allow 0.3 |
| 1442 |
Allow as claimed |
| 1447 |
Allow as claimed |
| 1448 |
Allow 0.2 |
| 1452 |
Allow as claimed |
| 1487 |
Allow as claimed |
| 2399 |
Disallow |
| 2717 |
Allow as claimed |
| 3427 |
Disallow |
| 3450 |
Disallow |
| 3451 |
Disallow |
Allowance for time spent on documents
- Taking into account all of the above, and recalling that the figures set out below exclude P15 work from A10, I allow the following amounts for time on documents:
Grade A, allow 125 hours. Grade B, allow 19.4 hours. Grade D, allow 150 hours.
Point 8
- Item 399, conference on 22 November 2019. Part of the advice in conference concerns advice regarding locating the driver and service of proceedings. However, a reduction of one third (to be claimed elsewhere) reasonably accounts for that work. The conference is otherwise reasonably incurred and the sum claimed of Ģ1,666.67 plus VAT is reasonable in amount. My allowances for counsel's fees generally take into account that the rates I have allowed are based on guideline rates only with no enhancement.
- Item 757, conference on 13 September 2021. The conference was largely concerned with the consequences of the Claimant's travel to Turkey including Covid-19 related travel restrictions which had impacted on the amount and frequency of professional care the Claimant could receive. A 50/50 split is not reasonable. The split should be one third of the total fee apportioned to this claim, further reduced on the grounds of reasonableness, to Ģ250 plus VAT.
- Item 896, conference on 28 March 2022. Linked to the adequacy of the Defendant's latest offer in respect of interim payments and the consequences for the Claimant's immediate care needs as well as the likelihood of requiring an application for a further interim payment in the near future. Reasonably incurred but unreasonable in amount. Allow Ģ1,000 plus VAT.
Point 9
- Item 974 was disallowed during the assessment.
- Item 1277, conference on 1 November 2022. Although elements of Mr Ford's fee are concerned with an e-mail and call to leading counsel, the majority of the fee is attributable to Mr Ford taking the driving seat (in terms of considering what impact, if any, the surveillance evidence had on the Claimant's case). There was never any risk of the Claimant being accused of a concocted claim. The accident happened. The Claimant was injured. Those are accepted facts. The surveillance evidence was reviewed in the context of differing expert medical opinion as to the underlying causes of why the Claimant's recovery might have been slower than expected. Allow Ģ900 plus VAT to allow for non-involvement of leading counsel.
Point 10
- Items 1350 and 1351, conference on 9 November 2022. The objection is not to the notion of a pre-JSM conference but rather to the reasonableness of leading counsel's involvement, and that the fees of Mr Ford are in any event too high.
- I am inclined to agree with the Defendant. The use of leading counsel was a luxury that the Claimant was entitled to pursue but where her legal team already included a senior junior counsel of 28 years calls (whom had been involved throughout) and a Grade A solicitor specialising in RTC claims (in a London 2 firm). I cannot conclude that the use of leading counsel was reasonably incurred. This was a quantum only claim with a value far closer to the settlement sum than the 7 figure valuations the Claimant had previously sought. Perhaps if the Claimant had stood firm in the face of the surveillance evidence upon the advice of leading counsel then such input might be justified. Instead, and faced with the reality of what took place, I disallow item 1350 and allow item 1351 as claimed.
Point 11
- Items 1401 and 1425, revising and updating the schedule of loss in November 2022. The provisional schedule of loss prepared by the Claimant's solicitors cannot reasonably be described as a "TBC schedule". I accept some future elements were TBC but the provisional schedule runs to some 30 pages and is very detailed. This is a case in which there has been no finding of fundamental dishonesty nor any formal finding of exaggeration.
- The JSM was pending and the Claimant was entitled to put forward her best and final position with regards to her maximum potential losses arising from the index accident. For context, Mr Hull was contacted post surveillance evidence but prior to the JSM but insufficient time (based on his availability) meant he could not produce a further report before the JSM.
- The Claimant's care expert was well versed in how surveillance evidence is obtained and deployed, and was able to comment on how footage may be edited and presented absent full context. Examples given included not observing the private aftermath of physical exertion, or where exertion was only possible through the use of painkillers.
- In my view, it was reasonable to engaged counsel of Mr Ford's standing to prepare the final form schedule of loss. Further, I do not consider that the heads of loss were unreasonably pleaded / presented at the JSM. I allow Ģ5,000 plus VAT in total for these two items (and I have taken into account that allowance when assessing the time spent on documents).
Point 12
- Item 1449, conference on 1 June 2021. A CMC had been listed and at this stage there remained some dispute over whether to proceed on the basis of a full trial or split trial. The fee claimed is already subject to a 50:50 split. I consider the resultant amount claimed, of Ģ375 plus VAT, to be reasonably incurred and reasonable in amount.
- Item 1482, conference on 31 May 2022. Described as being subject to a moiety, the fact is there is no fee note in support of this instruction of counsel. The is only corresponding time claimed is a 2 unit attendance for discussing the "way forward and CCMC". I am in some doubt as to this item and the Ģ140.62 plus VAT is disallowed. I do not consider the fee to be reasonably incurred in any event.
- Item 2570, conference on 8 January 2020. It is not apparent that this fee is intended to be split with the other related actions (liability, co-claimants) and therefore it is assessed as being 100% applicable to the quantum only costs of this Claimant. It was reasonable to incur time in conference with Mr Hull but the time engaged / fee incurred is unreasonable in amount taking into account the matters discussed and Grade A solicitor involvement. Reduce fee to Ģ950 plus VAT.
- Item 3039, conference on 3 May 2022. The fee note states that ūs of a day was engaged in preparation and attendance yet the fee claimed equates to 7.5 hours at Ģ375/hour. The Claimant's expert consultant psychiatrist and care expert were present. Having considered the matters discussed, including the impact of the theft from the Claimant's property, the relationship between the Claimant's psychiatric response and her care needs, I consider the fee was reasonably incurred. Notwithstanding time difficulties caused by the need for an interpreter to be present, I do not consider the overall time claimed to be reasonable and allow Ģ2,100 plus VAT.
- Item 3060, conference on 16 May 2022. Reasonable to engage in a conference with Mr Hull. Discussion was largely focused on comment regarding future risk factors associated with age which had been accelerated by the index accident, for example likelihood of the need for a hip replacement (and when). The time engaged / fee claimed is not reasonable in amount. Allow Ģ750 plus VAT.
Point 13
- Items 3226 and 3227, conference on 7 September 2022. This was a conference with experts, with accommodation and care expert present, leading and junior counsel, solicitors, interpreter, the Claimant and her litigation friend. The conference pre-dates the disclosure of any surveillance evidence.
- In the context of a quantum only claim, and taking into account the realistic value of the Claimant's claim, I don't agree that the instruction of leading counsel was reasonably incurred. Mr Ford was a senior junior with 28 years call who had been involved throughout, working in conjunction with a Grade A RTC specialist. Whilst I consider the engagement of Mr Ford to be reasonable, I consider his fee to be unreasonable in amount and allow Ģ3,250 plus VAT.
Point 14
- Items 3453 and 3454, JSM on 23 November 2022. See comments above. The only material change that might justify leading counsel's involvement was how best to respond to the surveillance evidence. Leading counsel, by his own admission, came to this matter late in the day. Leading counsel's involvement may have meant something of a luxury service for the Claimant, but given the representation and involvement at this JSM of a specialist RTC Grade A solicitor plus counsel of 28 years call whom had been involved throughout, I cannot conclude the engagement of leading counsel was justified for the 2nd Claimant's JSM on quantum only. Allow item 3454, reduced to Ģ3,500 plus VAT as being reasonable in amount.
Next steps
- The parties shall recalculate the bill and agree the running total.
- The parties shall then liaise and agree a time estimate for the completion of the assessment, following which joint dates of availability should be filed.
- In the meantime, the parties are invited to engage in ADR. In the event that a reasonable offer of ADR is unreasonably refused, or accepted but not meaningfully engaged in, the court may take this into account when deciding on the principle and amount of costs of assessment.
