Ann Francis Ikin & Others v Shawbrook Bank Ltd & Others
| Jurisdiction | England & Wales |
| Judge | Gordon-Saker |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1075 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: SC-2022-BTP-000858 |
[2023] EWHC 1075 (SCCO)
SENIOR COSTS JUDGE Gordon-Saker
Case No: SC-2022-BTP-000858
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Royal Courts of Justice
London, WC2A 2LL
Mr Dominic Finn (instructed by Parkerwall Limited) for the Claimants
Mr Paul Hughes (instructed by Eversheds Sutherland) for the Defendants
Hearing date: 28th March 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SENIOR COSTS JUDGE Gordon-Saker
At the hearing on 28 th March 2023 I indicated that the order I would make would be:
i) Pursuant to rule 44.11(2)(a) of the Civil Procedure Rules 1998, 40 per cent of the Claimants' costs as otherwise assessed or agreed are disallowed.
ii) Pursuant to rule 44.11(2)(b) of the Civil Procedure Rules 1998, the Claimants' solicitors shall pay 75 per cent of the Defendants' costs of the detailed assessment proceedings (including the costs of the Defendants' application dated 14 th April 2022) assessed summarily on the indemnity basis in the sum of £ 1 (after reduction to 75 per cent).
Given the subject matter and the lack of time available, I also indicated that I would give the reasons for these decisions in writing and that the time to appeal the order would not run until the handing down of this judgment.
This judgment sets out the reasons for those decisions.
The detailed assessment proceedings
The Claimants are entitled to their costs of proceedings for damages for misrepresentation and the rescission of finance agreements entered into with the defendant finance companies for the installation of solar panel systems. The Claimants were all represented by Parkerwall Limited, solicitors based in Liverpool, (“Parkerwall”).
As I understand it, Parkerwall also act for, and have acted for, other claimants with similar claims for solar panel misselling against the Defendants.
By an application dated 14 th April 2022, the Defendants applied for an order that all existing and future costs claims against the Defendants by claimants represented by Parkerwall be transferred to the Senior Courts Costs Office.
Nine claims had been concluded. One bill, that of Mr Keith Kinder, had been listed in the County Court at Liverpool for assessment by the Regional Costs Judge, District Judge Baldwin. In the remaining 8 cases 2, all County Court proceedings but at different hearing centres, 2 bills had been served and bills were anticipated in the other 6.
Three reasons were advanced for the application:
i) Concerns about counsel's fees.
There were apparent discrepancies in the claims for counsel's fees. In the Kinder claim, counsel's fee for an interlocutory hearing had been increased in a subsequent fee note and a fee note which purported to have been issued by counsel's chambers appeared not to have been issued by them. The day before the detailed assessment hearing the Claimant's solicitors indicated that they
would seek to have the bill assessed at nil and would pay the costs of the detailed assessment. The same counsel was instructed in the other claims.ii) Concerns about the expert's fees
The expert instructed on behalf of the Claimants had issued a VAT invoice in the Kinder case, despite not being registered for VAT. No receipted invoices had been served and the Defendants had concerns that the expert's fees may be contingent.
iii) Concerns about profit costs
In the 2 bills that had been served, Ikin and Walsh, there were 18 identical entries, not only in the wording, but also in the time recorded. For example:
“Considering all relevant information and evidence received to date and undertaking review of quantum, considering case law and judicial guidelines and preparing quantum value of case.”
It is difficult to understand what “judicial guidelines” could have been considered.
The other concern about the profit costs was the hourly rate. Although lower rates were claimed in the bills, Parkerwall had confirmed that the rate agreed with the claimants was £400 for all grades of fee earner.
It seemed to me that it would be appropriate for all of the costs claims in the concluded proceedings (apart from Kinder, in which the bill had been assessed at nil) to be decided by the same judge and, following a hearing of the Defendants' application on 30 th May 2022, I directed that the 8 claims should be transferred to the Costs Office.
In their points of dispute, the Defendants produced a schedule of further examples of identical entries between the 8 bills. In their replies, the Claimants' position was:
… that these are nothing more than estimates of time spent. The Claimant's Solicitor has used the same costs draftsman throughout. They have estimated time in accordance with their opinion as to how long tasks consistently take. There is nothing more sinister than the same draftsman estimating the same (or similar) work at the same or similar times.
The Defendants served a Part 18 request, to which the Claimants responded on 21 st October 2022. In answer to a question whether items in the bills, other than those identified in the schedule as identical, were also estimated, the Claimants replied somewhat elliptically:
The Defendant has produced a schedule of the items which are identical. Those which are not identical are the matters not contained within the Defendant's schedule.
However, in answer to the following requests, the Claimants confirmed that time had been estimated, according to the opinion of the draftsman of the bills, where there were no file notes and that “estimated time is claimed in every claim for costs before the court”. In response to a request that the Claimants identify all of the estimated time in the bills to be assessed on the first 2 days of the hearing, the Claimants replied that this would be onerous but that they would endeavour either to produce marked schedules for the hearing or to identify those items supported by file notes. In the event, neither was done.
In answer to the question whether Parkerwall used “an automated time recording system”, the answer was:
No. Time recording (if any) is carried out by the fee earner working on the file. Where no time recording exists, but it is apparent work has been undertaken, the time is estimated.
The answer to the request that the Claimants disclose their automated time records, was “N/a”.
The first bill to be assessed, Scott, was assessed line by line over 2 days in October 2022. There were serious problems with the bill. No time records were produced and no time was recorded in the Claimants' solicitors' file, save for one attendance note. It was conceded on behalf of the Claimant that, with this one exception, all of the time claimed in the bill had been estimated. Of greater concern, it also became apparent that some of the work was completely unsupported by the file.
If there is a letter in the file drafted by the receiving party's solicitor and no record of how long it took to draft, the bill draftsman has little option other than to estimate how long it would probably have taken. However, the convention is to mark estimated time in a bill with an (e). Estimated time is always viewed with circumspection: Brush v Bower Cotton & Bower [1993] 4 All ER 741 at 754. 3
Where it is possible to infer that work had probably been done, but no record or evidence that it had actually been done (such as the letter in the previous example), it is rather more difficult to claim it. If a statement of case or expert's report is received from the opponent, it may be reasonable to infer that a fee earner will have considered it. However, even greater circumspection will be required and the receiving party is at peril, especially when the assessment is on the standard basis, of being allowed either the minimum possible time or no time at all.
Where there is no record or evidence that work had been done and no reason to infer that work had been done, then, clearly, no work should be claimed.
In the case of Scott not only was virtually all of the time estimated, and not identified as such, but in a number of instances there was simply nothing in the file to enable the conclusion that the work had been done, even by inference. For example, at item 40, 54 minutes was claimed for reviewing an offer from the Defendant. On the same day, at item 41, 1 hour was claimed for:
Undertaking detailed review of quantum in light of offer on behalf of Defendant, considering relevant case law and judicial guidelines and preparing initial quantum valuation of case.
While one might infer that an offer from the Defendant would have been considered (item 40) even in the absence of any record that such work was done, there was simply no evidence in the file to suggest, even by inference, that a detailed review of quantum (item 41) had been carried out. Nor was there anything to suggest that “relevant case law” or “judicial guidelines” had been considered. If an “initial quantum valuation” had been prepared, it is strange that it was not in the file. This is imaginary work or, as I apparently described it in the hearing, “just fiction”.
There are similarly worded items in the bills in Walsh and Ikin (items 129 and 133 respectively) where 30 minutes was claimed for each.
The result of the assessment of the Scott bill was that £9,172.60 was allowed as against £27,819.60 claimed. That is 32.97 per cent.
My concerns about the bill were such that I ordered Parkerwall to file and serve a witness statement explaining why the bill in this case contained misdescriptions of the work done and why the Claimant's...
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