and hourly rates: another case of miscertification

MXX V UNITED LINCOLNSHIRE NHS TRUST [2018] EWHC B23

This was a decision regarding alleged mis-certification of a costs budget. The case bore similarities to the facts in Tucker v Griffiths and Hampshire University Hospitals NHS Trust, another decision of Master Rowley.

Both parties were critical of Master Rowley’s decision in Tucker, the defendant complaining that it had been too lenient and the claimant contending that it was too harsh as a finding of misconduct under CPR 44.11 had not been warranted on the facts.

In this case, the defendant had complained that the claimant’s solicitors had been guilty of misconduct by reason of their claiming lower hourly rates in their bill of costs than those which had been set out in their costs budget.

They said that “given the erroneous information before the judge, the whole of the budget was vitiated such that it must be considered to be a good reason to depart from the budget in its entirety.”

Furthermore, they said, the fact that the bill of costs had claimed 144 hours less than those set out in the budget “was another reason why there was a need to depart from the budget so that the bill could be scrutinised

In addition to a departure from the costs budget, the defendant sought a 75% reduction of the claimant’s assessed costs.

Despite the defendant’s contention that the facts of this case were more serious than in Tucker, the Master disagreed, finding that there was no material difference between the two cases. Accoridngly, as in Tucker, he disallowed the costs of the costs management elements in the claimant’s bill.

“it seems to me that a solicitor signing a statement of truth has to consider whether the incurred costs figure is fair and accurate separately from whether the figures for estimated costs are fair and accurate. There is absolutely no reason why the incurred costs figure should not be accurate.”

Master Rowley rejected the defendant’s criticism of the claimant for including less hours in the bill than it had done in the costs budget, which the claimant had put down to excluding time from the bill which would be vulnerable to challenge such as costs of funding, non-progressive file reviews and administrative matter.

“It seems to me to be unrealistic to expect a party to vet the time recorded on a line by line basis in the manner suggested by the defendant here. The bill of costs has taken nearly one hundred hours to prepare and that involves a considerably greater sum than would be allowed by 1% of the budget. Whilst I accept Mr Bacon’s comment that the extent of the remuneration is not the touchstone for the effort that should be involved, it does seem to me to be a pointer as to the expectation of the time to be spent in preparing a budget.”

MXX v UNITED LINCOLNSHIRE NHS TRUST [2018] EWHC B23