It is that time of year to get the pen and paper out, browse through the Argos catalogue and begin to prepare your Christmas list for us, it's all about our Costsmas Wishlist. I have done just that with three things that I think will be very handy as we head into Christmas and 2025.
A Christmas Truce (Costs Mediation)
Peace on Earth is very traditional and arguably a more important Christmas wish now more than ever in the current climate. Putting aside one’s differences and coming together amicably is something we can all get behind, and it may also become more of a common feature of costs disputes in 2025 and beyond. Especially following the obiter remarks made by Master McCloud in her final judgment in the case of Elphicke v Times Media Ltd [2024] EWHC 2595 (KB).
Whilst the main body of the judgment dealt with a number of issues, including whether a judge can take into account conduct of a party which takes place after a claim has been discontinued, the final Order that Master McCloud made included a provision ‘that the parties must engage in alternative dispute resolution as to the costs’ and that this should happen before either party resorts to proceeding to a detailed assessment hearing.
This is further evidence that the Courts are taking a far more active role to encourage parties to engage in ADR at all levels in an attempt to reduce the costs involved in such disputes and save the significant time and expense of the Court’s own preciously and scant resources.
The Perfect gift: High quality, contemporaneous File notes
It may not be the most exciting or glamourous gift (and is more akin to the type of dependable stocking filler you may get such as socks or that Lynx Africa set) but a high quality, contemporaneous file note can be worth its weight in gold should a Bill of Costs go to detailed assessment. Furthermore, failure to keep high quality, contemporaneous could land you very firmly on the naughty list.
This was evidenced by the recent judgment of Costs Judge James in the matter of Kapoor v Johal. This was a long running neighbour dispute which was contested by the parties over a number of years. A Bill of Costs was drawn up and served and the Paying Party raised a number of serious issues with the preparation of the Bill of Costs with a number indicative of serious conduct issues. One of these was serious issues was in respect of the file of papers and the time that had subsequently been included within the Bill.
One example identified by CJ James related to the attendance at a hearing. Interim statute invoices had been raised to the receiving party and included a fixed fee for a clerk to attend the hearing along with Counsel. However, the Bill of Costs included time for a Grade A fee earner attending the hearing. CJ James examined the file of papers and found a number of file notes relating to the hearing. CJ James noted that the file notes and correspondence seemed to be conflicted and upon closer examination deduced that the file notes had been amended and a different font had been used. CJ James stated that “The impression given is that the file has been supplemented with scores if not hundreds of attendance notes created much more recently. I cannot overstate how serious that is.”
This was one factor out of many that contributed towards a Bill of Costs totaling £258,583.78 being assessed at nil.
A Christmas (Medical Agency fee) breakdown
A breakdown can be a common Christmas occurrence. Whether it is when the meticulous timings for Christmas dinner go array and it becomes abundantly clear that the parsnips are burnt, the Turkey is raw and pigs in blankets have gone AWOL, or whether it’s after a few festive tipples and learning that the little green frog Tiny Tim did not die (god bless us, every one).
However, getting a breakdown of medical agency fees has been a hot topic for a while, and it seems that this is going to be a long running feature going into 2025. There are still many conflicting first instance decisions surfacing where the Court is exercising its discretion as it sees fit. For example, on the one hand the costs of obtaining a breakdown of a £750.00 fee note is considered disproportionate and therefore dispensed with but on the other hand a breakdown is ordered to be disclosed in respect of an expert fee of approximately £6,500.00.
As such, one thing that is high on the Costsmas list is a definitive judgment or clear judicial guidance on this point because the arguments and positions adopted by the interested parties is resulting in an impact on the potential to reach a cost settlement.
And finally on behalf of everyone at Paramount Legal Costs we wish you all a very Merry Christmas and prosperous new year!
Kris Kilsby is a Costs Lawyer at Paramount Legal Costs and a Council member of the Association of Costs Lawyers. For any further questions or queries about costs and detailed assessment please get in touch at [email protected].
