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The importance of accurate and meaningful time recording and evidencing work in Court of Protection assessments.

Deutsche Bank AG -v- Sebastian Holdings Inc [2023] EWHC 9 (SCCO) is, as I have already mentioned, a civil costs matter.  However, during the assessment, which lasted some 97 days, the receiving party was penalised given the Senior Costs Judge, Master Gordon-Saker, felt it been prolonged as a result of poor time recording and a lack of documents.  Their costs of assessment, payable by the paying party, were reduced by 30% to reflect this.

The Senior Judge went on to comment that the receiving party (Deutsche Bank) had prolonged the process given the nature of their solicitors’ time recording, lack of documents and in particular, their attendance notes and file notes.

I will not go over the facts of the case here, as it is not entirely relevant to Court of Protection practitioners.  However, the bill of costs drafted totalled some £53 million.

More pertinent to Court of Protection practitioners were the criticisms that were levied against the receiving party.  It was said that the descriptions within the time records were “broadly inadequate to identify precisely what work had been undertaken and that composite entries did not divide the time spent between different tasks”.

For the receiving party, it was necessary for them to take the Judge through the monthly work undertaken and seek to evidence it by going through the files to  examine documents associated with the work done.  The Judge described this as a “painstaking exercise” and he referred to this on a number of occasions as “forensic archaeology”.

Further, the files were not presented to the court in any obvious order.  This not only impacted the receiving party’s entitlement to their costs of assessment, but also impacted the recovery of their work done on documents, for which many attendance notes and/or evidence of the work was missing.  There were 40 documents schedules attached to the bill and “substantial reductions” had been made as a result.

But what does all this have to do with Court of Protection costs I hear you ask?

It is worthwhile remembering that when your bill is submitted for assessment, be that a traditional paper or new COP E-bill (under the current pilot), it is accompanied by your file of papers.

I very much doubt the costs officers will have the time and inclination to reconcile each and every letter, telephone note and attendance note, with each item claimed within the bill.  However, if there is any doubt that creeps into the costs officer’s mind as to whether or not a particular item is reasonable, they may well turn to the file to seek to read the attendance note in support of the work claimed, particularly if it is a larger item or where more lengthy work has been undertaken.

It is important to remember that your file should be in some semblance of order.  In my experience, the court prefers the file to run in chronological order as this makes it easier for the costs officer to locate a particular file note.

Files can now be lodged with the court in support of the assessment either by paper or electronic means, but in both cases should run in chronological order for this reason.

If a costs officer is unable to locate a specific file note in support of an item, or if that file note is not sufficiently detailed, you run the risk of having that item reduced, or even disallowed.

At A & M Bacon, we always strive to identify any missing attendance notes and bring these to your attention prior to the assessment, to provide you the opportunity to include any further notes or evidence of work required to ensure all your hard work is recovered.

To my mind, this case also serves as a timely reminder to set out the work done clearly.  This will not only help your costs draftsman, but also the costs officer or Judge.

Again, it is worth remembering the bill is split into:-

  1. Routine letters out
  2. Timed letters out
  3. Routine telephone calls
  4. Timed telephone calls
  5. Timed attendances (meetings)
  6. Document preparation and consideration and review time

It is important to ensure you breakdown each element of this work, which will assist in ensuring the time is recovered fully.  If I am presented with an attendance note which simply states; “Drafting witness statement, includes various calls and emails to the client: 5.0 hrs”, it is difficult to know exactly how much time was spent liaising with the client, what was discussed and how long was spent actually drafting the witness statement.  This leaves the time open to reduction, whereas when the full five hours are broken down into the categories listed above, the costs officer will be able to see reasonable time has been spent on different aspects.

I do hope you have found this month’s article to be of interest.  I am keen to hear from any of you who might want some further training in relation to issues similar to this.  If this is something that might be of interest, please don’t hesitate to contact us.  Our details are provided below.

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