I previously discussed the issue of what hourly rate is appropriate for drafting a bill of costs. I suggested that for the vast majority of bills Grade D rates were appropriate.
One reader responded that those bills with “difficult apportionment issues or multiple parties with costs orders going here and there” should justify a higher rate.
I will immediately concede that this type of bill can be very complicated to properly draft. This is in large part due to the uncertainties of the law surrounding these complex areas. How about the following:
“The principles established in Medway Oil and Storage Co Ltd v Continental Contractors Ltd  AC 88, HL concerning the costs of claims and counterclaims have been largely overridden by the introduction of the CPR. Discuss.”
Issues surrounding apportionment of common costs are fiendishly difficult. Other than a brief mention in relation to group actions, I can see no attempt by Cook on Costs 2010 to even try to deal with this area. Civil Costs: Law and Practice gives a detailed analysis of some of the principles that apply but does not put forward any clear guidance as to how some of the problem issues should be resolved. (What does the ALCD training information have to say about this area?)
Although it may well be the case that a properly drafted bill in relation to one of these problem areas would justify above Grade D rates – and I reserve my position on that – unfortunately, it is this type of bill that is often most poorly drafted. I suspect that the majority of the time this has nothing to do with the receiving party deliberately drafting the bill in the most favourable manner arguable, but rather reflects a failure to understand that there is even an issue. Even worse is the situation where an attempt at apportionment, for example, has been made but this appears to have been done in an entirely arbitrary and random manner. Often it is impossible to work out how the apportionment has been applied. The paying party is left to guess.
So, well done to the costs draftsman who drafted the bill I recently saw where the pre-amble explains:
“The Bill of Costs has been prepared to include all costs incurred representing both the First and Second Claimants. Where work has been undertaken in respect of both Claimants, including letters, telephone calls, attendances and documents items, time spent has been claimed in full, however only half the monetary amount payable is claimed in each part of the Bill. All other time claimed relates solely to each Claimant or has been split between the claims already.”
This way, everything was nice and clear from the outset.
Actually, the bill itself was then somewhat confusing as to how common costs had been apportioned or divided.
Oh, and the Bill did claim VAT incorrectly.
Oh, and the relevant information in relation to additional liabilities was not served.
Still, you can’t have everything in life.