It is worth taking into account the case of Farmer v The Chief Constable of Lancashire (2019) EWHC B18 (Costs). This was a case in which a Bill was originally drafted at £174,565.79 which included a success fee in Parts 2 and 3 of the Bill in the sum of £28,088.41. It was then conceded that the first CFA was unenforceable and therefore that success fee was no longer pursued. The Bill also included costs calculated using incorrect hourly rates in Part 4 worth £20,556 and it was conceded that the rates claimed were too high. A replacement Bill was lodged at £116,192.50. The Defendant applied pursuant to CPR 44.11 in relation to misconduct for the Court to disallow the entirety of the Bill.
This matter was a case in which there was a second CFA involved. The Claimant’s Solicitors attempted to claim the success on Parts 2 and 3 of the Bill and maintained that position as late as day one of the Detailed Assessment.
The second CFA was held to be retrospective only to around 14th May 2015 and not to around 20th October 2012, as contended. That being the case, there was no retainer to cover Parts 2 and 3 of the Bill. The Bill should have been something like one-third of the figure originally claimed, which would have taken it below the threshold for Provisional Assessment. The Bill had not been properly drawn. Instead, four days were set aside to hear a Bill which was still not right and which was supported by a witness statement which was not right either.
In addition, there was an application claimed within the Bill which should not have been in there. The Bill was ultimately around £59,933.10 excluding the bill drafting costs, or 34% of the Bill as originally lodged. There were numerous examples of documents, specifically the Bill, the Replies and witness statements, which had been signed without any proper regard for the need to fact check and ensure matters were dealt with properly.
In the circumstances, it was stated that the Claimant had not complied with the provisions of CPR 1.3 which provides that the parties were required to help the Court to further the overriding objective. The Bill was disallowed accordingly.
This case simply reiterates the need to take the correct advice when drafting a Bill of Costs and submitting Replies.