In Scott v Hull and North East Yorkshire NHS Trust, DJ Besford at Kingston Upon Hull County Court found sufficient doubt as to strike out a claim for costs against the Defendant.
There was a back history to this case which is of interest to this detailed assessment. The Receiving Party (represented by Rapid Solicitors of Hull) had lodged an original bill totalling £112,000. That bill was calculated on the basis of an hourly rate of £400 and 100% success fee uplift. The matter progressed between the parties and was set down for detailed assessment at which point, the original bill was withdrawn in favour of an amended bill detailing an hourly rate of £146 (guideline rates) and an uplift of 54% thus reducing the final bill to approximately £36,000.
The hearing of this, a preliminary issue regarding the retainer, followed on from an adjourned detailed assessment hearing where it came to light, “at early doors” that there appeared to be two CFAs.
To be fair, this fact had been picked up by the Paying Party at any early stage in negotiations but the initial response from the Receiving Party was that there had been only one CFA dated 30th November 2011. Following the hearing however, DJ Besford commented:
That reply has now been conceded to be wholly incorrect. Further in my view Rapid’s actions in not specifically referring to a second CFA were, I think misleading and inappropriate
For this reason, and “sunlight being the best disinfectant”, the Court put the Receiving Party to their election to either disclose copies of the CFA and primary documents or rely upon any secondary evidence to show entitlement to the success fee and nature of retainer.
The Receiving Party chose the latter option, to supply secondary evidence in the form of a statement although at the hearing they were also prepared to disclose the retainer documents to DJ Besford. The District Judge in turn made reference to the fact that the
guidance and law concerning the disclosure of documents and CFAs in particular [is] somewhat fudged and unsatisfactory
a fact that will not be missed by experienced costs draftsmen across the country.
The Receiving Party offered a statement by a Mr Thompson who was neither the fee earner in the case nor involved with the CFA or even involved with the case prior to the costs issue. Mr Thompson’s position was further complicated by the fact that when challenged as to the content of his statement regarding BTE insurance enquiries, the dates give in the statement were found to be incorrect.
In the end and with reference to the catalogue of failures prior to the assessment process including the certificated bill later withdrawn and replaced by an amended bill, the certificated rates in the original bill which were unsubstantiated, the certificated original bill with a 100% success fee also subsequently withdrawn although signed as correct at the time the bill was prepared, the contradictory evidence regarding the CFAs, DJ Besford concluded that he had such significant doubt over the position of the CFAs and retainer in this particular claim (stating that “the original bill was clearly miscertified”) and that as this was a Standard Basis assessment, he must exercise such doubt in favour of the Paying Party.
The claim was therefore assessed at zero.