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Welcome to Inside Law Welcome to the fourth edition of Inside Law featuring a range of contributions from across the firm and from leading authorities on legal issues, which we hope you will find of interest and benefit. We are grateful for the contribution made to this edition from all contributors however we would wish to thank Stuart McKechnie, Barrister at 9 Gough Square Chambers, who was awarded the title of Personal Injury Barrister of the Year for 2011 and has recently has been nominated for Personal Injury/Clinical Negligence Junior of the Year at the 2012 Chambers & Partners Bar Awards. Stuart’s reputation really is second to none. Life after Jackson really has caused concern throughout the Personal Injury and Legal Costing professions although R Costings has worked for some considerable time in addressing these major changes. We see the outlook as a positive one and with the stronger business model, the more positive the outlook will be. The time for change has been upon us for well over 12 months and with many key points to be addressed, working practices will inevitably change. Finally R Costings welcomes articles from sources within the Legal Profession and should anybody wish to make a contribution for the next edition please contact us at info@rcostings.co.uk. We hope you enjoy this issue and as always your feedback is very welcome. Paul Reason Costs Lawyer and Managing Director. 2 Signing on the dotted line… Correctly signing a Bill of Costs can easily be over looked by a busy solicitor when you are inundated with work and have numerous important deadlines to meet. However the consequences of failing to complete this task correctly can be dire. A challenge to the validity of the receiving party’s retainer is included automatically in the majority of Points of Dispute with a request for disclosure of the retainer agreement, CFA or CCFA in the hope that the Judge will sanction a fishing trip. Challenges to the recoverability of costs at all are often made at a Detailed Assessment Hearing citing Hollins v Russell [2003] EWCA Civ 718. Here the paying party needs to raise a factual issue which is relevant and not a sham or fanciful dispute. When this is raised the Costs Judge has a duty to investigate. Also challenges are often made as to whether individual items are correctly claimed or breach the indemnity principal. The receiving party in most cases will rely on the signature of the Bill of Costs successfully to repel these arguments and prevent the paying party commencing their fishing expedition. Bailey v IBC Vehicles Ltd [1998] EWCA Civ 566 is cited as authority for the fact that “The signature of the Bill of Costs under the Rules is effectively the certificate by an officer of the Court that the receiving party’s solicitors are not seeking to recover in relation to any item more than they have agreed to charge their client under a contentious business agreement.” and that “The Court can (and should unless there is evidence to the contrary) assume that his signature to the Bill of Costs shows that the indemnity principle has not been offended.” This is all well and good where the certificate to the Bill of Costs has correctly been completed. However where this has been completed incorrectly this effective argument to dismiss the paying party’s arguments is lost. The failure to complete the certificate to the Bill of Costs amounts to a relevant factual issue as per Hollins v Russell [2003] EWCA Civ 718 and this often leads to the Judge exploring the validity of the costs claim. Many Detailed Assessment hearings have been derailed as a result of simple oversights and errors within the signature to the Bill of Costs. Once the error is identified the presumption that the Bill of Costs has been claimed correctly is no longer valid. The question the Judge will then consider is that if the solicitor with conduct does not take time to sign the Bill of Costs correctly has the solicitor checked the Bill of Costs at all? And an extension of that being is the time Charles Cuthbert Advocate recorded correctly within attendance notes and time records? This opens the floodgates to the paying party’s challenges to the Bill of Costs. The presumption changes from being that the Bill of Costs is correct to any doubt be resolved in the favour of the paying party. I have attended a number of Detailed Assessment Hearings for both receiving party and paying party where this simple oversight causes the Hearing to come to a shuddering halt. The receiving party is often required to seek permission to take instructions, the case may overrun and only be part heard or simply additional reductions are made as doubt must now be resolved in favour of the paying party. These can all be very costly to the receiving party. Or at the very least time claimed for checking and signing the Bill of Costs will be disallowed. In my experience Judges are often exasperated when time is claimed for checking a Bill of Costs and it is incorrectly certified by a solicitor, usually a partner or solicitor with over 8 years’ experience of litigation (though now a Bill of Costs can be signed by the solicitor with conduct). When the law places such significance on a solicitor’s signature, not getting it right can cast the whole of the bill in an unfavourable light. Given that a correctly completed certificate of accuracy is very effective at stopping a paying party’s challenges in their tracks, this is something which should be 100% correct every time. What is so galling is for a Judge to say at the end of a Detailed Assessment Hearing that the paying party’s challenges would not have been investigated had the Bill of Costs been signed correctly!! I implore you to take your time to ensure that when you sign your next Bill of Costs that you take that extra couple of minutes to consider what you are signing and make sure this is completed correctly. Now that it is not a requirement that a Partner sign a Bill of Costs and more staff are dealing with this issue (many of which will have little or no involvement with Costs Law) I would suggest that time is spent ensuring that everyone within your organisation is aware of the consequences of failing to certify a Bill of Costs correctly. It’s amazing how such a minor oversight can have such a significant effect on both the level of costs recovered and the amount of Detailed Assessment costs incurred in negotiation of your costs.