Page 15 - PIC Magazine Issue 24 - Spring-Summer (Digital)

Lessons in
Trust and
Confidence
Adam Fox, Director - NWL Costs Lawyers
At the outset of my costs
career a client reiterated to me advice that they had received from their supervising
partner during their training contract; a solicitor’s relationship with their costs draftsman is of fundamental importance and it is essential to find a draftsman who can be trusted and relied upon.
Costs representatives act under the conventional agency principles with Bowstead and Reynolds on Agency stating:
“Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that other person with responsibility to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.
...Under this doctrine a principal may be bound by the acts of
an agent which he has not authorised, and has even forbidden...”
2024 provided a further, timely, reminder to solicitors as to the importance of instructing costs representatives who are both trustworthy and reliable given the solicitor’s ongoing responsibility for the acts of those representatives, and resultant findings of misconduct, under the provisions of CPR 44.11.
In Kapoor v Johal [2024] EWHC 2853 (SCCO) a bill of costs of in excess of £250,000 was assessed at nil by Costs Judge James after it was found that the bill, prepared by an unregulated costs draftsman, was “dishonest,
and unreasonable, and improper”. The bill included costs claimed in breach of the indemnity principle, unsubstantiated claims for VAT, costs unrelated to the index proceedings and “serif” attendance notes which appeared to have been fabricated
to supplement claims for costs
made within the bill, which by and large significantly exceeded N260s previously served. These issues were considered by Costs Judge James
to be sufficiently serious to warrant referral of the conducting solicitor to the SRA, and would have warranted referral of the draftsman had he
been regulated. The conduct of both solicitor and draftsman was clearly blameworthy and this case stands as an important example of the potential consequences that may be faced.
Ikin v Shawbrook Bank Limited [2023] EWHC 1075 (SCCO) also saw a bill
of costs reduced from £29,774.90
to £9,250. An additional eight bills were assessed at nil or otherwise substantially reduced following a finding of misconduct made by Senior Costs Judge Gordon-Saker that: “Claiming the cost of work where there was no evidence in the file that work had been done and nothing
to allow a reasonable inference that work had been done [was], both unreasonable and improper.” It was further stated within the judgment that “The draftsman of the bill and the fee earners who did the work would have known that virtually all of the time had been estimated” but highlighted that the conducting solicitor remained “responsible for the conduct of those
to whom they subcontracted the work that they (the solicitors were retained to do”. As a consequence the Claimant’s Solicitors were ordered to pay the Defendant’s costs of the detailed assessment process.
The primary authority on the issue
of a relationship between solicitor and costs representative stands as Gempride Ltd v Bamrah & Others [2018] EWCA Civ 1367 in which it was held by Lord Justice Hickinbottom
“it seems to me to be an important matter of principle that solicitors
on record – and other authorised litigators and ‘legal representatives’ for the purposes of the CPR – understand that they remain ultimately responsible for the acts and omissions of those
to whom they delegate parts of the conduct of litigation.”
Lord Justice Davis further commented that in relation to the certificate as
to accuracy “[Ms Bamrah] was the solicitor who signed the certificate.
It was on her certificate – the certificate of an officer of the court – that the paying party and the court itself would rely.”
Whilst it is surprising that such instances of misconduct continue to arise, particularly given the severity of consequences faced by those found out on assessment, the lesson is clear to solicitors to place faith in professional, regulated and diligent costs professionals.
At NWL and across the Frenkel Topping Group within PIC, Bidwell Henderson and A&M Bacon we have a wealth of expertise on which clients should be confident in relying on in relation to all of their costs needs.
www.pic.legal Spring & Summer 2025
PARTNERS IN COSTS 15