AKC v Barking, Havering & Redbridge University Hospitals NHS Trust

Factual and Procedural Background

In 2015, the Appellant initiated a clinical negligence claim against the Respondent, a University Hospitals NHS Trust. The Trust admitted liability and agreed to meet the Appellant's liability costs. The parties subsequently settled the quantum of damages, and an order was made in March 2019 approving the settlement and requiring the Trust to pay the Appellant's quantum costs. The Appellant commenced detailed assessment proceedings for quantum costs in August 2019, serving a bill of costs composed of a paper bill for work up to April 2018 and an electronic bill for work thereafter.

The Trust raised preliminary objections to the bill of costs, arguing it was not properly certified, failed to provide the names and status (including qualifications and post-qualification experience) of fee earners in the paper bill, and failed to provide names, status, and Senior Courts Costs Office (SCCO) grades in the electronic bill. The Trust applied to strike out the bill and require a new one. Costs Judge Nagalingam dismissed this application, but Steyn J, on appeal, allowed it, concluding the bill was deficient in certification and information about fee earners. Steyn J struck out the bill and ordered a compliant replacement. The Appellant served a new bill but appeals only the finding regarding information about fee earners, no longer contesting the certification issue.

Legal Issues Presented

1. Whether a bill of costs must include the names of individual fee earners in both paper and electronic formats.
2. Whether a bill of costs must specify the status of each fee earner, including professional qualifications and years of post-qualification experience.
3. Whether electronic bills must include the SCCO grade of each fee earner and provide sufficient detail to enable identification of work done by individual fee earners.
4. The extent to which Practice Direction 47 and its Precedents (notably Precedent A and Precedent S) prescribe the form and content of bills of costs.
5. The appropriate sanction for non-compliance with the rules governing bills of costs.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the paper bill sufficiently disclosed the status of fee earners by reference to categories and years of experience, and that naming fee earners individually was not strictly required by Practice Direction 47.
• Regarding the electronic bill, the Appellant argued it was not strictly required to fill all columns of Precedent S, and that the bill served was in "any other spreadsheet format" rather than strictly the Precedent S format.
• The Appellant asserted that the additional information provided in points of reply and Part 18 responses adequately supplemented the bill of costs.

Respondent's Arguments

• The Respondent maintained that paragraph 5.11(2) of Practice Direction 47 requires fee earners to be named individually in a bill of costs, with their status and hourly rates specified on an individual basis.
• It was argued that electronic bills must include the name, status, and SCCO grade of each fee earner to comply with Practice Direction 47 and that failure to do so renders the bill opaque and non-compliant.
• The Respondent emphasized that identifying individual fee earners is necessary to assess whether the rates claimed are reasonable and whether the work was appropriately delegated or excessive in time.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the requirements of CPR Part 47 and Practice Direction 47 regarding bills of costs, focusing on the form and content of paper and electronic bills. It noted that paper bills must include background information setting out the status and hourly rates of fee earners but that the Practice Direction does not explicitly require naming each fee earner individually. The Court observed that Precedent A, a model paper bill, does not name fee earners but groups them by category, which supports the view that naming is not strictly necessary for paper bills.

However, the Court agreed with Steyn J that paper bills must specify the status of fee earners, including professional qualifications and years of post-qualification experience where relevant. The Court found the paper bill deficient because it did not confirm the professional qualification or post-qualification experience of a "Partner" fee earner justifying a high hourly rate.

Regarding electronic bills, the Court concluded that a bill using the Precedent S spreadsheet format must provide sufficient data to complete worksheet 5, including the name, status, and SCCO grade of each fee earner, except possibly where work is outsourced to an agency. The Court reasoned that electronic bills must be more informative and transparent than paper bills to enable the paying party and the court to identify the work undertaken by individual fee earners, which is essential for assessing reasonableness and proportionality of costs.

The Court rejected the argument that Practice Direction 47 lacks authority, finding that the CPR specifically cross-references it, thereby giving it binding force in this context. It emphasized that failure to provide adequate detail in the electronic bill rendered it non-compliant.

Although the Appellant supplemented the bills with additional information in points of reply and Part 18 responses, the Court found that these did not cure the deficiencies, as the information was not integrated into the bill to allow clear identification of which fee earner performed specific work.

Consequently, the Court upheld Steyn J’s decision to strike out the original bill and require a compliant replacement, noting that non-compliance does not always warrant striking out but was appropriate given the circumstances.

Holding and Implications

The appeal is dismissed.

The Court held that while paper bills of costs do not strictly require naming individual fee earners, they must specify the status of each fee earner, including professional qualifications and post-qualification experience where relevant. Electronic bills adopting the Precedent S format must include the name, status, and SCCO grade of each fee earner, except where work is outsourced to an agency. The failure of the Appellant’s original bills to meet these requirements justified striking them out and ordering replacement bills compliant with the Civil Procedure Rules and Practice Direction 47.

The decision underscores the importance of transparency and sufficient detail in bills of costs to enable proper assessment of costs by the paying party and the court. No new precedent was established beyond clarifying the application of existing Practice Direction 47 requirements and the appropriate sanction for non-compliance in this context.