Senior Costs Judge: bills must be split for work carried out before and after 1 April 2013


Clinical negligence case: pre and post 1 April 2013 costs

It is “convenient and necessary” for lawyers’ bills to be split into two parts to distinguish between work carried out before and after 1 April 2013 in any case involving proportionality, the Senior Costs Judge has ruled.

Master Gordon-Saker said this was because the old and new, post-Jackson proportionality tests were different.

Ruling on a fatal medical negligence claim, the Master also said it was “both necessary and convenient”, where a costs management order had been made, for bills to be drawn up “in parts which reflect the phases”.

He went on: “Although multi-part bills tend to obscure the overall picture, it seems to me that (unless a sensible alternative can be devised) in a case in which a budget has been approved or agreed and the costs are to be assessed on the standard basis, it will be both necessary and convenient to draw the bill in parts which correspond with the phases of the budget.

“Within each part it will also be necessary to distinguish between the costs incurred before and after the budget was agreed or approved. This could be done without further sub-division by use of italics, bold, superscript or some other formatting device.

“The new format of bill, which is shortly to be the subject of a pilot in the Senior Courts Costs Office, should avoid these difficulties.

“Where a bill has already been drawn without being divided into phases, one possible course to avoid re-drawing the bill would be to serve schedules setting out the individual items of costs claimed in relation to each phase. I understand that a number of courts have directed this.”

Master Gordon-Saker was ruling in BP v Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs), involving a woman who died in 2010 from an infection linked to a severe brain injury which was sustained during a quadruple heart bypass operation.

The law firm Hugh James acted for her, and following her death, for her son, MP, suing as the administrator of her estate. Proceedings were issued in June 2013, seeking total damages of over £440,000.

Master Gordon-Saker said the claim was settled at a round-table meeting shortly before trial in January 2015, for £205,000. The settlement was approved by the court and the damages divided between four of the woman’s children.

The master said it was “difficult to identify” the work done before 1 April 2013, but assumed that the total base costs claimed were £45,000. He said this did not appear disproportionate, given that it was a “complex clinical negligence case in which both liability and causation were disputed throughout”.

For the period after 1 April 2013, the master allowed total base costs of £138,203. He said this bore a “reasonable relationship” to the sums in issue – a claim for £440,000, which settled at £205,000.

Master Gordon-Saker ruled that the claimant was entitled to his costs.


    Readers Comments

  • The Senior Costs Judge confirmed that the bill should be prepared to show work undertaken for each phase where there is an approved budget and also to show work undertaken pre/post April 2013.
    What appears to be overlooked in a number of reports on the case where the headlines shout bills must be split for work carried out before and after 1 April 2013 is the rule provided at the time the new “proportionality” test was introduced.
    The relevant rule, as contained in the Civil Procedure (Amendment No.2) Rules 2013 reads:
    “Paragraphs (2)(a) and (5) do not apply in relation to—
    (a) cases commenced before 1st April 2013; or
    (b) costs incurred in respect of work done before 1st April 2013,
    and in relation to such cases or costs, rule 44.4.(2)(a) as it was in force immediately before 1st April 2013 will apply instead.”
    Therefore where the claim was issued before April 2013 the old proportionality test is applied to all work and only where the proceedings were issued after April 2013 should the bill be split to allow the application of the old test of proportionality for work up to 20 March 2013 with the new approach adopted thereafter.
    Paragraph 5 of the Senior Costs Judge’s judgment confirms that the claim was issued 24 June 2013 and therefore the bill of costs should have been so apportioned.

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