CoP Costs Column: Best Practice for file keeping and recording time

Peggy Freeman of A& M Bacon with some practical tips around how organised file keeping can help when recovering your costs.

The best way to maximize the recovery of your costs is to ensure that you diligently record your time on file. You should also ensure that your file is presented in such a manner as to assist the cost officer on assessment. 

When a bill of costs is to be assessed by the SCCO the file of papers will be called for to support the work claimed. In accordance with CPD 47 (13.12) the papers to be filed in support of the bill and the order in which they are to be arranged are as follows:

(i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions;
(ii) reports and opinions of medical and other experts;
(iii) any other relevant papers;
(iv) a full set of any relevant statements of case
(v) correspondence, file notes and attendance notes;

It is therefore important that the file of papers is arranged in such a manner as to make the assessment by the authorised cost officer the least time consuming as possible. The way to achieve this is relatively straightforward if you follow some simple steps.

Firstly, keep the file in chronological order so that the authorised cost officer can find what they need.

Secondly, keep your documents, such as medical reports, Counsel’s advices, Statements of Case, COP forms etc. separate to file attendance notes and communications. If the documents are voluminous and in more than one file, make sure that the files are labelled appropriately and in some sort of order. Remember you are trying to make the assessment of costs easier for the authorised cost officer.

Thirdly, file notes and attendance notes. By far this is the most important element. All time spent by a fee earner should ideally be recorded on file. Careful time recording will help to minimise the losses, which may result on assessment. The more detail the better the recovery will be on assessment. The file note should therefore have five vital details:

(i) Date
(ii) Time taken
(iii) What work was undertaken
(iv) Who was involved and 
(v) Why the work was done

Try to avoid the lumping of time together to deter the authorised cost officer from reducing the time claimed. If the time relates to more than one activity, the time should be apportioned accordingly so that it may be properly justified on assessment. Attendances on parties, in conference or even at court should show separately time claimed for travelling, waiting and attendance; the same applies to conferences or advocacy. This principle equally applies to preparation time including perusal, research and drafting documents. It should be noted, however, that the expenditure of such time should be supported by a note as to the purpose of the time spent, particularly regarding research. A solicitor is expected to be able to deal with everyday cases without the need to do a great deal of legal research. However, time spent in researching a novel, developing or unusual point of law or the impact of new legislation to the case may be allowed in exceptional cases (Perry and Alexander v Lord Chancellor [1994]).

The fee earner is required to provide adequate evidence that the work was properly and reasonably done (see Part 7 of SD 9 – estimated costs). Whilst it is not an obligation the position may be summarized by “if you do not record, you are unlikely to be paid”.  In Johnson v Reed 1992 ALL ER 169 the Court stated:

 “Claims for unrecorded time are likely to be viewed with very considerable care on taxation and it would only be in an unusual case that any substantial allowance would be made ..”

Remember that you can claim time for the preparation of attendance notes. In Bush v Bower Cotton & Bower [1993] 4 ALL ER 741 Brooke J said:

“Work properly and reasonably done in furthering the client’s interests may reasonably include the preparation of attendance and file notes recording what has been done.”

Outgoing letters and telephone calls will be remunerated as a unit rate regardless of length of time spent unless there are adequate file notes recording the time spent and the reasons for that time.

Whilst computerised time recording is a useful management tool it should be remembered that not all recorded time is recoverable from a protected party’s estate. These include items such as reading incoming routine correspondence, internal communications, supervision, photocopying, scanning, cheque requests etc. These are all deemed to fall under the heading of overheads (Part 8 of SD9 – items of an administrative nature).
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Even where preparation has been fully recorded with many entries with exact timings on precise dates, this does not mean that all the recorded time will be allowed. It must still have been reasonable to undertake the item of work claimed and the amount of time spent reasonable. When the costs are assessed this will be borne in mind by the authorised cost officer.

Once the bill has been e-filed at some stage the SCCO will request the hard copies of the paper file to undertake the assessment. This was normally to be within 5 days from the date of request. However, the timescale for professionals to send the paper file following e-filing has now been extended from 5 days to 28 days.

Remember the best way of maximising recovery of your costs is to ensure that your file of papers is complete.

Peggy Freeman
Court of Protection Costs Expert
Email: [email protected]
Web: https://www.aandmbacon.co.uk/