The Importance of File Notes

Charlene Turner

Introduction

The importance of file notes cannot be overstated. One of the key bits of advice we constantly provide is the need to evidence the work undertaken with a file note. 

If you don’t? Well, then you introduce “doubt”. 

“Doubt” in a Standard Basis Assessment will invariably lead to arguments under CPR 44.3(2) which states that the Court will resolve any doubt which it may have in favour of the paying party. The likely result for a receiving party? Reduction at best, but most often – disallowance of said item/s. 

Background

It is an issue that we often report on because it’s an issue that is frequently highlighted in case law and a common occurrence at Detailed Assessment. One of the more recent cases doing exactly that is Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO) (31 October 2023). 

Allseas involved a costs assessment following Criminal Proceedings (rather than our more familiarly reported Civil Litigation claim types), it was a private prosecution by the receiving party and a costs order under section 17 of the Prosecution of Offences Act 1985 had been made. Costs were assessed but the determination was disputed and an Appeal followed.  

Although not a type of claim which you may think is relevant to Civil Litigation Costs, the test on Assessment is still similar (albeit not identical) to the principles that apply in Civil Assessments.   

One of the key issues in this matter related to Counsel’s fees (both Leading and Junior), which were significant in amount. A large proportion of Counsel’s fees in respect of a re-Trial, were disputed and on review, were considered to be unsupported by itemised breakdowns of what work was actually specifically undertaken in support of the individual fees raised. 

 In the Senior Cost Judge’s annexed summary of the Judgment on part of this, he said: 

“I have no doubt that counsel's records reflect work actually undertaken, although I have had to resolve an element of doubt against the [the receiving party].…”  

and 

…. it was unfortunate that the timed entries in a spreadsheet provided in respect of Counsel appeared to have been generated from his fees,  as opposed to as a result of actual time spent.”   

Though the Senior Costs Judge did say that he had “no reason to suppose that the fees themselves have not, equally, been generated from [Counsel’s] own record of time spent”. 

The Senior Costs Judge recorded within the Judgment that “An element of doubt” had also arisen “where sufficiently specific records are lacking”. The example given was “… where a substantial conference takes place between solicitors and counsel I would normally expect to see a detailed record of the conference itself. Without such a record an element of doubt inevitably arises, not so much as to the time actually spent but as to whether it can fully be justified. In such circumstances, it is necessary to take a conservative approach, as it is where it is unclear exactly what work is being done or what the outcome might have been” 

A large reduction was made to Counsel’s fees as a result. 

Conclusion

The same applies to Solicitor time as it does Counsel.  Don’t get caught short – prepare those notes; support your work. Do not allow room for “doubt”. If you support your costs claim as you would support your Client’s damages claim, the rest should follow. 

The full judgment can be found here. 

If you would like to discuss this issue further, please do not hesitate to contact the author Charlene Turner here 

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