Overheads and irrecoverables

Diarising, note taking, routine communications with the court and counsel and unrecorded time

Burke -v- Tower Hamlets Health Authority (The Times 10.08.89)
Diarising etc forms part of the administrative tasks and are therefore part of the solicitors overheads.

Brush -v- Bower Cotton & Bower (1993) 4 All ER 741
Time preparing attendance notes is recoverable provided the time preparing them is also properly recorded. However unrecorded time, dictation time, mark-up, communications with the court and counsel, courier fees, and increased indemnity premiums were identified as being irrecoverable costs.

Photocopying

Landau & Cohen -v- The Lord Chancellor’s Department 1999 
The additional costs to solicitors of photocopying in house 41,566 sheets of prosecution evidence were allowable on taxation as a disbursement at a commercial rate; a trial judge’s recommendation to that effect was not binding on the taxing officer.

Johnson -v- Reed Corrugated Cases Ltd [1992] 1 All ER 169
Decided a number of issues including interest on costs, current hourly rate, the broad average direct cost, mark up, unrecorded time, the time for a partner drawing bill of costs and an allowance in respect of photocopying – finding that photocopying charges could be recoverable if the level of photocopying was exceptional. In this case approximately 10,000 copies.

Research time

R v Legal Aid Board, Ex Parte Bruce (1991) 1 WLR 1231
Concerned a claim for the fees of Mrs Bruce, an unqualified but expert in welfare benefits law. Her fees were claimed by solicitors in the Legal Aid Green Form. The Legal Aid Board rejected the claim for fees on the basis that they were not a disbursement. This was part of a solicitor’s overhead i.e. advising solicitor, not the client, in the law.

Perry v Lord Chancellor QBD (1994) QBD (The Times 26th May 1994)
A claim for Junior Counsel’s fees for research time. The general rule is that counsel (and therefore one assumes solicitors too) are deemed to know the law in the area in which they practice. NB: Pressure of time and the novelty and the complexity of the legal issues will, however, be factors that will need to be taken into account on an assessment of costs.

Supervision time

R v Sandhu, 29.11.1984 – Lord Chancellor’s Department’s Taxing Compendium.
Items disallowed on assessment: (1) unqualified / unexplained supervision; (2) letters / memos between fee earners; (3) inter-fee earner discussions.

Radcliffe, Re (2004) EWHC 90039 (costs) 920 December 2004 (Master O’Hare)
Followed R -v- Sandhu.

Travelling to see the client

Various Ledward Claimants v Kent & Medway HA [2003] EWHC 2551
Paragraph 24 of the judgment – “it is normal for a claimant to visit a solicitor at the office, in respect of which no travel time or cost is recoverable. It does not appear to be being argued that any of the claimants are housebound or in hospital, even though some may need to be accompanied when they go out.”

Atkins –v- Johnson Matthey & Co Ltd (Nov 1970 unreported)
Costs of travelling to a client is not recoverable between the parties.

McIlwraith –v- McIlwraith & Another (2005) EWHC 90010 (Costs).
Costs of travelling to a client is not recoverable between the parties.

Stewart Robert Thornley (A child by his mother and litigation friend Lavinia Thornley) -v- Ministry of Defence [2010] EWHC B24 (QB) or [2010] EWHC 2584 (QB)
Time spent travelling to see a client was allowed on the facts of the case. But as to the hourly rate, the court retains a discretion to allow a different (lower) rate for travel time. “It would need to be an exceptional case to justify a differential hourly rate but this was an exceptional case. In our view DJ Bedford should either have reduced the hourly rate from that which he allowed in the earlier case to reflect the high amount of travel or to have fixed a differential hourly rate for travel”.

Client’s own travel time and expenses

R v Stockport Magistrates’ Court, Ex Parte Cooper (1984)
A litigant in civil cases, save for those cases where The Litigants in Persons (Costs & Expenses) Act 1975 Applies, was not entitled to costs for his own loss of time. In criminal cases only witnesses were entitled to costs for loss of time.

Extract from the Judgment:

“On inter partes taxations, a litigant’s travel costs have always been irrecoverable, with the limited exception created by Ord.62, r.18 in favour of litigants in person”. The historical basis for this rule is set out by Bowen L.J. in London Scottish Benefit Society v. Chorley [1884] 13 Q.B. 872. I take the passage from the approving citation of it by Danckwerts L.J. in Buckland v. Watts [1970] 1 Q.B. 27 at 36:

“A great principle, which underlies the administration of the English law, is that the courts are open to everyone, and that no complaint can be entertained of trouble and anxiety caused by an action begun maliciously and without reasonable or probable cause; but as a guard and protection against unjust litigation costs are rendered recoverable from an unsuccessful opponent. Costs are the creation of statute. The first enactment is the Statute of Gloucester, 6 Edw. 1, c. 1, which gave the costs of the ‘writ purchased’. There is a passage in Lord Coke’s Commentary, 2 Inst. 288, which it is worth while to examine, as it affords a key to the true view of the law of costs. That passage is as follows:

Here is express mention made but of the costs of his writ, but it extendeth to all the legal costs of the suit but not to the costs and expenses of his travel and loss of time, and therefore “costages” cometh of the verb “conster”, and that again of the verb “constare”, for these “costages” must “constare” to the court to be legal costs and expenses.’

What does Lord Coke mean by these words? His meaning seems to be that the only legal costs which the court can measure are to be allowed, and that such legal costs are to be treated as expenses necessarily arising from the litigation and necessarily caused by the course which it takes. Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual”.

R v Legal Aid Board (Merseyside) Area Office, Ex Parte Eccleston (1998). QBD (Crown Office List) (Sedley J) 03/04/98 
An application for payment out of the fund in respect of the client’s expenses for travelling to London for a psychiatric examination. Between the parties, such expenses would not be recoverable as ‘costs’ but this did not affect the recoverability of such a ‘disbursement’ from the fund. In allowing the appeal the High Court judge held that the recorder had been wrong to hold that “at trial” was not defined in the CPR . Rule 45.15(6)(b) showed that “at trial” meant at a contested hearing.