THE NEW BILL OF COSTS
Denis O’Sullivan, B.C.L., LL.M., M.Litt., Solicitor.
The Bill of Costs lies at the centre of any system of adjudication of costs. It is the Bill of Costs which allows the Solicitor for the Costs to demonstrate the history of the litigation and the nature and extent of the work done – and required to be done – to bring the case to a successful conclusion for her client, the complexity of the case, and the professional responsibility involved. Likewise, it is the Bill of Costs which should enable the party opposing the costs claimed to identify what he believes was either not allowable, or over-priced, in the context of party-and-party costs. Unfortunately, neither of these objectives were met satisfactorily in the customary Bill of Costs under the old regime of taxation of costs, where form tended to predominate over substance.
Here, consideration is afforded to the new Bill of Costs which must now be employed for the purpose of Adjudication of Costs in the Superior Courts. For convenience, the issues which arise will be viewed in the context of a successful plaintiff in a personal injuries action who has successfully settled, or obtained judgement, in a High Court action and obtained an order for payment of his costs of the action, the same to be adjudicated upon in default of agreement between the parties as to the amount payable in respect of costs.
The Form of the Bill of Costs is now required by O. 99, r. 26(5) to be in Form No. 3 in Part V of Appendix W, R.S.C., 1986, as amended. The Bill is now required to be divided into Sections. A Bill may have up to five Sections A, B, C, D and E. In a High Court action which goes to trial, or is settled shortly before trial, at least four of these five sections (A - D) will have to be completed. There is an Explanatory Note provided at the commencement of each of these Sections.
Section A: “Costs Incurred Before Commencement of Proceedings”
Section A of the Bill must tell the story of the case up from the initial approach by an intending client until the Summons is issued. This Section must contain a Summary of Services provided during this period. Although not specifically required, it would be sensible that this Section should commence with an identification of the period of time which this Section covers and, also, the terms of the Order of the High Court with respect to costs. Setting out the terms of the settlement or judgement obtained in this Section – although on one view anticipatory – will also put the subsequent course of the litigation into perspective.
Thereafter, a Summary of Services must be enumerated comprising all services provided from the client’s initial instructions to the solicitor until the issuing of the proceedings. It is suggested that this might identify difficulties and complexities in relation to the commencement of the litigation, facts required to be ascertained, investigations required to be made, expert Reports required to be obtained, instructions provided to counsel, consideration of the advices of counsel, the formulation of the theory of the case which was settled on, and the formulation of the claim as stated in the Indorsement of Claim on the Personal Injuries Summons, which will at least require setting out the substance of the Indorsement of Claim on the Personal Injuries Summons.
This Section must provide an itemised list in datal order of the steps taken by the solicitor from initial taking of instructions which ultimately culminated in the issue of the Personal Injuries Summons. The adjudication of costs process has become a considerably more perilous process for the Solicitor for the Costs as a result of the introduction of the lodgement in satisfaction of costs provisions of O. 99, and the solicitor must be careful to demonstrate the work done with specificity if he, or she, wishes to obtain a successful outcome to the adjudication and avoid falling foul of any lodgement in satisfaction of costs made by the defendants.
Although the prescribed Form says that the Summary of Services “should avoid lengthy recital of the content of the correspondence, reports or other documentation,” it should be remembered that such “content” is the only evidence of work done by the solicitor in the matter and that, to the extent that it is not included in the Bill, it is unlikely to be taken into account. The format of the Bill itself requires items of work to be individually numbered, the dates of the same to be stated, and a “detailed description of work done for which costs are claimed to be provided.” Hence, to demonstrate the work done, one should identify the substance of a letter written on a given date, state the substance of a letter received and considered on a given date and the action taken in response to it, and state the substance of interviews by telephone or in office with client, experts or counsel, and so on, in addition to more formal steps, such as taking a statement, instructing experts, instructing counsel, considering counsel’s advices and preparing and issuing the Personal Injuries Summons
Section B: “Costs from Commencement of Action to Trial/Settlement Date”
Section B of the Bill continues the story of the case from the date of issue of the Summons until immediately before trial or settlement negotiations. Again, this should include a Summary of Services provided for the period to which this Section relates. It is suggested that the following should be included as a minimum:
A statement of the issues in the litigation in the context of the Defence(s) delivered by the defendants.
An identification of the interlocutory matters pursued in correspondence and/or the Court applications in such matters made or defended – such as in relation to Particulars, Discovery or Interrogatories, as the case may be.
Advices on Proofs required to be followed.
Identification of the Counsel briefed for trial or settlement negotiations and the extent of the Brief required to be prepared for Counsel.
Identification of the expert witnesses (and their reports) instructed by both sides, as well as a demonstration of the complexity of the litigation and any difficulties which arose in obtaining expert reports and arranging the attendances of witnesses for the trial.
The matter of the complexity of the case should also be dealt with at this juncture, as this will have become fully apparent with the identification of the issues in the action on the filing of the Defence(s) and amplified as the interlocutory matters are pursued in correspondence and before the Court.
Again, the appropriate Summary of Services must provide an itemised list in datal order of the steps taken by the Solicitor which culminated in the commencement of the trial or negotiations on the same basis as that provided for Section A.
Section C: “Costs Incurred During Course of Trial/Settlement and Up To Determination of Proceedings”
Section C requires a description of the proceedings in the trial itself or in relation to negotiations, as the case may be. In the context of a trial, the management of witnesses, attendance at consultations, and attending on Counsel in Court will typically comprise the major elements of the narrative here. The outcome of the trial or negotiations should also be stated at this juncture and the Order made by the Court, if any, if not previously stated.
Any special significance attaching to the outcome should also be stated, for example, its importance to the client or any broader importance which may arise.
Again, the appropriate Summary of Services must include a history of the steps in datal order taken to advance the litigation to the conclusion of a successful trial or successful negotiations.
The Explanatory Note to this Section is unhelpful. It proceeds on the basis that preparation for the trial is “Costs incurred during the Course of the Trial” which is clearly incorrect. If one is to adhere to the stated scheme of the Bill, matters such as briefing counsel, interviewing witnesses, and arranging pre-trial consultations should appear in Section B
Section D: “Costs Incurred Subsequent to Trial”
Section D is intended to allow a claim to be made for work done in the post-trial, or post-negotiation, phase of the litigation. This aspect of a plaintiff’s costs was seriously overlooked under the old regime to the detriment of solicitors. Every litigation solicitor is aware of the amount of work that is required to be done in the aftermath of settlement or judgement, but few of these items were the subject of remuneration in the past. The Form of the new Bill affords the plaintiff’s solicitor the opportunity of claiming and recovering for this work in implementing the judgement of the court or the terms of the settlement, as the case may be. Thus, the Summary of Services should, where appropriate, refer to applying for an Order required to be made by the settlement, e.g., the Order for costs and their adjudication, taking up the Order of the High Court, contacting witnesses to advise that their attendance for Court is no longer required, requesting expert witnesses to forward a note of their professional fees outstanding, negotiating outstanding matters in relation to amount and other incidentals, and arranging for the discharge of the same. Receiving funds in settlement and arranging for funds to be transferred to client, discharging fees of expert witnesses (to be recouped at adjudication and then refunded to client), discharging other expenses of the litigation (to be recouped at adjudication and then refunded to client), requesting notes of the fees of Senior Counsel and Junior Counsel, negotiating payment on account in respect of costs pursuant to Order 99 R.S.C., 1986, as amended, applying to the Court for an Order for payment on account (in the absence of agreement). All of this work is essential to implement the judgement or settlement, as the case may be, and should be recoverable on party-and-party taxation.
Importantly, the Summary of Services should include a detailed history of the steps set out in datal order from judgment, or settlement, which were necessary to implement the judgement or settlement.
An important issue relates to whether “Section D: Costs Incurred Subsequent to Trial” includes the drawing of the Bill of Costs itself. In modern times, this function in actions in the High Court is typically delegated to a legal costs accountant by the Solicitor for the Costs. It is a function which is no longer usually performed by the Solicitor for the Costs and it typically marks the initiation of the adjudication of costs process. There is, moreover, no reference to “Bill of Costs” in the Explanatory Note to Section D; and, if drawing the Bill of Costs were intended to be included in Section D, one would have expected that term of art to have been employed. There is a reference to “negotiation and accounting for party and party costs” but this seems to refer to negotiation with individuals who have provided services in the litigation and to whom monies are outstanding. It is submitted that the better view, therefore, is that the drawing of the Bill of Costs is part of the “costs of the adjudication process” rather than of the trial.
Instruction Fee and Counsels’ Fees
One of the remarkable features of the new Bill of Costs is that it makes no provision for the specification of an Instruction Fee. This does not mean that the Instruction Fee has been abolished to be replaced by item by item charging – although the format of the new Bill would, at first sight, seem to suggest this. For a start, the Instruction Fee exists as a matter of positive law and could not be abolished by the side-wind of a new Form which omits to mention its existence. Second, the new Form provides for charging on the basis of time as an option – the only anomaly being that it does not mention the standard option for charging, namely, the Instruction Fee. In Best v. Wellcome Foundation Ltd.  3 I.R. 378, 382 the “Instruction Fee” was described as an amount which is intended:
“To cover taking instructions for the trial or hearing and not merely for the preparation of a brief… It was a fee to cover the overall care and attention which the case required, the difficulties in taking proofs of evidence and intended witnesses and generally organising the case. Ensuring the availability of witnesses and indeed the availability of counsel. It had to cover living with the case. It covered a variety of consultations as well as the cost of assembling and preparing the brief itself.”
Likewise, in the case of Counsel, who is entitled to mark a “rolled-up” Brief Fee, that is to say, an inclusive Brief Fee which is intended to cover all work done by counsel in relation to the litigation.
Although the format of the new Bill indicates on first impression that a total charge in respect of lawyers’ professional fees should be specified for each Section, this is only to cover those circumstances where the lawyers have charged on the basis of an hourly rate. Where the charge has been made on the basis of an Instruction Fee or Rolled-Up Brief Fee, as the case may be, then, by definition, the charge is not intended to be split over several Sections. Any attempt to do so would be artificial in the extreme since the Instruction Fee is intended to be one single whole “to cover living with the case,” perhaps for several years. Demands by defendants that the plaintiff’s solicitor should split the Instruction Fee across the several Sections of the Bill have been successfully resisted, and Bills based on composite Instruction Fees have been accepted in the Office of the Legal Costs Adjudicators.
It is considered that the logical place to claim for the Solicitor’s Instruction Fee and Counsel’s Rolled-Up Brief Fee – where it is desired to claim on this basis – is at the conclusion of Section D which is typically the conclusion of the Bill itself.
Section E: For What Cannot be More Conveniently Dealt with in Preceding Sections
Section E is an omnibus section intended to provide for the opportunity to claim in respect of matters that cannot conveniently be dealt with elsewhere in the Bill. For example, if there was an appeal to the Court of Appeal in relation to an interlocutory Order which awarded
costs to the plaintiff, it may be convenient to deal with the statement of those costs in this Section.
Each, and all, of these Sections – A, B, C, D and E – are divided into sub-categories so that separate detailed claims are required to be made in respect of Solicitor, Counsel, Experts, and Expenses. While Counsel may mark a “Rolled-Up” Brief Fee as previously described, they must nevertheless identify the work to which that Brief Fee relates. Obviously, Counsel should be invited to offer a statement of the work done by Counsel for inclusion in each of the Bill’s sections.
Duty to attempt to agree Bill of Costs
Either party to party-and-party costs adjudication may refer a Bill of Costs, once served, for adjudication provided that that party has first attempted to agree the Bill with his, or her, opponent: section 154(2) & (3) of the Legal Services Regulation Act, 2015. The duty to attempt to agree the Bill with one’s opponent before proceeding to adjudication requires that the parties discuss the Bill with a view to reaching agreement. But, if agreement is not forthcoming, then either party may proceed to adjudication. Given that the party resisting the Bill is now entitled to make a lodgement, or tender, in satisfaction of costs, the party presenting the Bill should be aware that such discussions may well be subsequently employed for the purpose of deciding upon the amount of the lodgement or tender.
THE COSTS OF ADJUDICATION IN PARTY-AND-PARTY ADJUDICATIONS
Under the former system of taxation of party-and-party costs, neither party was entitled to costs of the party-and-party taxation against the other. That prohibition on the award of such costs now stands abolished. In its place, O. 99, r. 13(2), R.S.C., 1986, as amended, now provides for the award of the costs of the adjudication process in party-and-party adjudications. In addition, a further entirely novel provision providing for the making of lodgements, or tenders, in satisfaction of costs has also been introduced. Here, consideration is afforded to the scope and effect of these fundamental changes in party-and-party adjudication of costs.
The assessment of the amount of the costs to which a successful party to litigation is entitled on foot of an Order of the Court for payment of such costs is an essential component of the entitlement to relief of the successful party in litigation. It is not an incidental or ancillary aspect of litigation but, on the contrary, an essential component of the remedy granted to the vindicated plaintiff or, indeed, the defendant who has been wrongly sued. Hence, it requires strict justification if rules are to be introduced which clog the right of the party, who has obtained such an order, to obtain payment of the full measure of the costs incurred by him, or her, in successfully prosecuting or defending litigation. It must be remembered that, in the adjudication of costs process , one is not dealing with a claimant who has yet to establish liability and damage, but rather with one who has been found (or admitted) to have been injured by the wrong of another and entitled to recover the costs of self-vindication before a court.
It is well-recognised that, in the assessment of party-and-party costs, there exists a range of values within which a professional fee – whether that of lawyer or expert witness – can remain objectively reasonable. An award of costs within that range of values is fair, notwithstanding that it may be less than that marked by the lawyer or expert. On the other hand, if the fee claimed can properly be regarded as reasonable, then the party awarded costs is entitled to recover that amount since the function of the costs Order is to make restitution to that party in respect of the costs of his having been compelled to engage in litigation. Of course, the lawyer or expert whose fee is in question, must demonstrate the features of the litigation which justify his, or her, marking the fee charged in terms of: the work done, and required to be done, to bring the case to a successful conclusion; the complexity of the issues; the responsibility involved; and the other factors identified in the First Schedule of the Legal Services Regulation Act, 2015. But where relevant matters have been thus identified to justify the fee marked, it is obviously for the party resisting the fee charged to show that the reliance on those matters is mistaken in one, or more, significant respects. In this context, attempts to “average costs” or to allow a bare minimum – or the lowest amount which might be described as “reasonable” – defeats the purpose and rationale of the award of costs. It sacrifices the interest of the party injured to some other perceived – but generally unstated – reason for mitigating the costs incurred by him or her in favour of the unsuccessful party to the litigation.
Nevertheless, even within the parameters of the foregoing approach, there is obviously room for disagreement. This is because there is no fee written in stone which constitutes “reasonable remuneration” for work done. Moreover, the Legal Costs Adjudicator in many cases may find difficulty in judging the complexity inherent in the litigation because, unlike the lawyers involved, he will not have had the opportunity of acquiring the detail which they acquired over years of living with the case. This is not a criticism of the Legal Costs Adjudicator or of the system, but merely a recognition of the reality involved in performing a very difficult exercise within a very short period of time. Hence, the concept of a range of values within which a professional fee can remain objectively reasonable.
The right to costs in party-and-party adjudication
Order 99, r. 13(2), R.S.C., 1986, as amended, provides:
“The costs and expenses of an adjudication shall, unless the Legal Costs Adjudicator, for special reason to be stated in his determination otherwise directs, follow the event.”
The first issue concerns what constitutes “the event” in such an adjudication which determines to whom the costs of the adjudication should be awarded? If the party in whose favour the Order for costs has been made gets an assessment of any sum in respect of costs, then surely he has won “the event” on the adjudication? On this basis, recovery of any amount in the adjudication entitles the party so recovering to his, or her, costs of the adjudication. Moreover, there are no circumstances (other than failing to beat a lodgement or tender) in which the costs of the adjudication can – except for special reason stated – go otherwise than to the party who has thus won “the event.”
The further question relates to what comes within the criterion of “the costs and expenses” of the adjudication?
First, there is the work done in drawing the Bill of Costs. One of the advantages of the new format of the Bill which facilitates the assessment process, is the detail which must be stated in the Bill. The Solicitor for the costs is responsible for the contents of the Bill which he presents on behalf of his client and this means that he must exercise close supervision over its preparation, even if he delegates its preparation to a member of his own staff or a legal costs accountant. In complex actions, this means that it may take several days to formulate the Bill in accordance with the requirements of the Rules of Court. It should be mentioned that, as an alternative, the expense of drawing the Bill of Costs is sometimes claimed under Section D of the Bill of Costs and, for reasons which will appear later in this article, it may be wiser to claim this item in that context.
Second, in point of time, there are the discussions (mandated by statute to occur before the Bill of Costs may be issued) to attempt to agree the Bill which, again, may take considerable time. This is because there are the four headings of costs to be considered, namely, Solicitor, Senior Counsel, Junior Counsel, and Other Disbursements; and, even if the party resisting the Bill has little interest in compromise, that party will most likely be interested in acquiring such information as he can glean from those discussions for the purpose of making a lodgement, or tender, in satisfaction of costs.
Third, there is the Court fee required to be paid on issuing the Bill of Costs prior to its service.
Fourth, there is the preparation of the argument for the hearing before the Legal Costs Adjudicator.
Fifth, there is the attendance to argue for the Bill at the hearing before the Legal Costs Adjudicator.
Sixth, there is stamp duty (which under the former system of taxation was always the responsibility of the party resisting the Bill of Costs in party-and-party taxations).
This itemisation is not intended to be comprehensive, but it captures the main items of work and outlay involved for the Solicitor for the costs in the legal costs adjudication process contemplated by the present O. 99.
As regards the costs incurred by the party opposing the Bill of Costs in party-and-party taxation, there are two important prohibitions on recovery, comprising the time spent in preparing to oppose the Bill and the time spent in attendance before the Legal Costs Adjudicator to oppose the Bill. This is because O. 99, r. 29(1), precludes the awarding of preparation and attendance charges for opposing costs on the adjudication of party-and-party costs:
“The Legal Costs Adjudicator may allow a legal practitioner or legal costs accountant attending to oppose the adjudication of costs, otherwise than as between party and party, proper charges for his preparation and attendance.” (Emphasis added.)
It should also be added that section 27(6) of the Courts and Court Officers Act, 1995, which imposed a statutory prohibition of any allowance being made in respect of the costs of taxation of any party on party-and-party taxation, has now been repealed by section 2 of the Courts Act, 2019. Consequently, where party-and- party costs are in issue, the Legal Costs Adjudicator does not have jurisdiction to award a solicitor’s, or legal costs accountant’s, charges for preparation and attendance at the hearing to oppose the adjudication of costs.
Lodgement or Tender in Satisfaction of Costs
in Party-and-Party Adjudication
The penalty in costs on failing to beat a lodgement or tender in party-and-party Adjudication can be significant and, sometimes, unjust. Denis O’Sullivan investigates.
The provisions in relation to lodgement, or tender, in satisfaction of costs are found in O. 99, rr. 57 - 61, R.S.C., 1986, as amended. The relevant Forms are found in Part V of Appendix W, R.S.C., 1986, as amended. The lodgement must be made within 21 days of receipt of the Bill by the person against whom the costs order is directed, although this can be extended by a Legal Costs Adjudicator: O. 99, r. 57(1). A tender in satisfaction of costs may likewise be made and has the same effect, and is subject to the same rules as a lodgement made in satisfaction of costs: O. 99, r. 61.
The concept of lodgement, or tender, in the adjudication of costs process was introduced by section 3 of the Courts Act, 2019, which amended section 154(10) of the Legal Service Regulation Act, 2015, to empower the making of rules of court providing for lodgement, or tender, in the adjudication of costs process. Order 99, r. 60, R.S.C., 1986, as amended, provides that if the claimant fails to beat the lodgement or tender made then the claimant is “entitled to the costs of the adjudication up to the time when such payment into Court was made,” while the opponent is “entitled to the costs of the adjudication from the time such payment into Court was made ...”
Unlike O. 22, r. 6 (which deals with lodgement or tender in an action) where a discretion is recognised on the part of the trial judge as to the allocation of costs of the action on failure to beat the lodgement – “then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise directs” – O. 99, r. 60, clearly allows no such discretion to the Legal Costs Adjudicator.
The extent to which r. 60 penalises a party who fails to beat a lodgement in respect of costs depends upon what constitutes “the costs of the adjudication.”
The main item of work involved in the adjudication process is often the preparation of the detailed Bill (“drawing the Bill of Costs”) which will typically take several days at least in any complex case, and, also, the statutory-required discussions between the parties with a view to agreeing the Bill. Nevertheless, one can visualise how such costs (being costs incurred in relation to the adjudication process before acceptance of lodgement) may be substantially exceeded by the costs involved in the post-lodgement part of the adjudication process. It is true that the party opposing the Bill of Costs cannot recover a solicitor’s, or legal costs accountant’s, charges either for preparation or attendance at the hearing to oppose the costs at the adjudication of costs. Nevertheless, if the “costs of the adjudication” are deemed to include the stamp duty – payable at 8 per cent – on the amount allowed by the Legal Costs Adjudicator, this may readily exceed the costs of the adjudication incurred pre-lodgement by the solicitor for the costs and leave his client burdened with a substantial sum in respect of the “costs of adjudication.” This levy – no matter by whom payable – is nothing less than an indiscriminate and arbitrary penalty for engaging in the adjudication process. This is because its amount bears no relation to any actual expense assessed as having been incurred in the adjudication process. It applies even in respect of witness expenses, and its amount is related exclusively to the sum certified by the Legal Costs Adjudicator. As such, it is a penal tax on the administration of justice with defendants sometimes heretofore being compelled to pay more in settlement than they feel they ought because of the comparatively ruinous expense of discharging the stamp duty involved if they should allow the matter to proceed to final adjudication. If the incidence of this levy is shifted to the party pursuing the adjudication when she fails to beat a lodgement in satisfaction of costs, the result would be that an indiscriminate and arbitrary penalty would be imposed instead on that party who is merely pursuing her right to have an adjudication of the costs to which she is entitled on foot of an Order of the Court directing such adjudication. Fortunately, in party-and-party costs adjudication, the penalty imposed by r. 60, on the person who has been vindicated before the court seems to end there, because O. 99, r. 29(1) provides, as previously noted, that the Legal Costs Adjudicator has no jurisdiction to award the preparation and attendance charges for opposing the costs on the adjudication of party-and-party costs.
The lodgement process itself is not straightforward because O. 99, r. 57(2), R.S.C., 1986, as amended, requires the party lodging to allocate the lodgement between Solicitor, Senior Counsel, Junior Counsel, and Other Disbursements. Thus, Appendix W, Form No. 5, R.S.C., 1986, as amended (“Notice of Lodgement in Satisfaction of Costs”) provides for the identification of the payments made under these four categories. Under O. 99, r. 57(3), the individuals in respect of whose fees an allocation has been made in the Notice of Lodgement in Satisfaction of Costs, must be informed of same by service on him, or her, of a copy of the Notice of Lodgement. The implication is that, once a specific amount has been identified as being allocated to an individual lawyer, it would seem to be impressed with a trust for her use, to the exclusion of others, if the lodgement is accepted. Likewise, individuals to whom sums have been allocated under the Notice of Lodgement have the right to accept, or refuse, the individual allocation made to such individuals. Form No. 6, Appendix W, is in terms consistent with this.
Underlying this procedure of lodgement against individual fees marked by the lawyers involved in the litigation is a complete conflict with the basic principle of civil litigation in this jurisdiction, namely, that the litigation is that of the client and that its costs are her responsibility, with a claim on the part of her lawyers against her for their agreed fees and not directly against the defendant. The requirement to lodge in satisfaction of the fees of the lawyers who represented the successful party in the litigation is indeed a radical change which affects substantive law. Yet it seems that this is the only interpretation that can be adopted in this context which is consistent with O. 99, r. 57(2), and the specified Forms relating to Notice of Lodgement and Notice of Acceptance of Lodgement.
Yet a further issue relates to the situation where the party presenting the Bill fails to beat the lodgement in respect one, or more, of the heads in respect of which the resisting party is required to lodge, but succeeds in relation to another, or others. For example, suppose that the party presenting the Bill beats the amounts allocated in the lodgement under three heads and fails in relation to one head only, say, the Solicitor’s Instruction Fee, and, in consequence, fails to be awarded less than the total amount lodged? In the context of the allocations required to be made under several heads, it would be highly illogical to insist that that party’s success under three heads should be ignored because of the failure to succeed under the final head, leading to a failure to beat the total sum lodged. This situation raises in acute form the problem which results from the failure to provide a discretion to the Legal Costs Adjudicator to mitigate what may, depending on the circumstances, amount to a wholly disproportionate and unjust penalty in costs being imposed on the party presenting the Bill.
Denis O’ Sullivan, 6 Lapps Quay, Cork