CoP Costs Column: It's All in the Narrative

In the latest costs column from A&M Bacon, Jenny Walmsley gives a personal view on the importance of the narrative in recovering costs. 

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Jenny Walmsley Costs Lawyer and Court of Protection Costs Specialist, A & M Bacon

I think I drew my first Court of Protection bill of costs back in about 2006. On being handed a file I professed that I had not prepared such a bill before and asked for pointers. ‘Don’t worry about the narrative’ I was told ‘we have a template for that’. Another draftsman uttered ‘do we even need a narrative for a COP matter?’. The template, it transpired, was a couple of brief generic paragraphs relating to the payment of invoices and the management of the protected party’s (P’s) financial affairs. Paragraphs so generic in fact that they arguably served no purpose at all.

Some draftsmen who do not practice in this area of costs may still be under the misapprehension that the narrative plays very little or no part in Court of Protection bills, but they are mistaken. A detailed narrative is very important in ensuring the successful recovery of costs in this field. As with other areas of costs, there is a direct relationship between the quality of the narrative and the recovery of profit costs. At A & M Bacon, attention to detail, and the preparation of comprehensive narratives, are at the heart of what we do. A good narrative improves recoverability for our professional clients and reduces the need for detailed assessment.

Whilst the costs officer may have no interest in the extent to which P enjoyed their recent trip to the seaside,  it does help to set the scene a little. P’s circumstances and a background  - particularly regarding the value of assets held, which gives an indication of the proportionality of the work undertaken, should be included. Whilst the paying of P’s gas bill may be self-explanatory and need not be highlighted in the narrative, much work undertaken should be. Certainly, wherever costs are high in a particular area these need to be justified. I have seen narratives referring, for example, to ‘heavy communications’ with a particular party without any attempt to justify the same - which has to be worse than not highlighting the fact at all!

I try to cast my eye over a bill after I have finished drafting to spot any heavy elements of claim that I may not have supported sufficiently when initially drafting the bill. Anything that stands out, or at first glance generates a sharp intake of breath, must be justified in the narrative, explaining why the costs arose and why the costs could not be avoided. I would seek further clarification from the instructing solicitor if necessary. All that being said, where the time claimed cannot be wholly justified, I would not seek to ‘flog a dead horse’ and risk that points made in respect of other items in the bill lose validity. We must not ‘over egg the pudding’ in respect of seeking to support weak claims or integrity is lost and once again the narrative fails to serve purpose.

When I have completed the bill and narrative I revisit the parties and ensure that involvement with each party is either clearly self-explanatory (e.g. simply paying a water bill) or that I have referred to the party, and explained the necessity of the communication, within the narrative.

It is important that fee earner rates are fully justified too. Just because a fee earner has 4 to 8 years PQE does not mean, of course, that a Grade B rate will be recoverable, especially for routine aspects of work like paying bills. Indeed, not only is the work likely to be reduced to a Grade D rate, a 6-minute claim will most likely be reduced to 3 minutes (see guidance provided by Master O’Hare in Leighanne Radcliffe [2004] EWHC 90039 (Costs)). It is of course in the professional clients’ best interests to delegate work to lower grade fee earners where possible. If this is not possible, the use of higher-grade fee earners again should be justified in the narrative. Highlighting, for example, the fact that the more experienced fee earner utilises less time and thereby there is no financial detriment to P. As guideline rates have not increased since 2010, the ability to fully justify enhanced or ‘blended’ rates (referred to in Yazid Yahiaoui & Ors [2014] SCCO Ref: P745/6, P1327/6 & U786/3) is also essential to maximise recoverability for the professional client.

As a further important point, where the costs estimate provided in the OPG 105 is exceeded by in excess of 20%, it is imperative that the reasons for the departure are explained fully in the narrative.
So how can professional clients ensure that their draftsman has the tools to prepare a strong narrative? Draftsmen sometimes receive instructions from their professional clients to simply prepare the bill. It may be that the elements of a good narrative can all be found within the file itself but this is not always the case. Does the draftsman have details of P and their background/ circumstances? Are details of any litigation proceedings and outcome included (as previously mentioned the value of any award assists regarding the proportionality of the claim for costs)? Are details of P’s care and accommodation arrangements provided? Finally, has the costs draftsman received information regarding details of P’s assets and liabilities? If this information cannot be found in the file provided, then it is advantageous to provide the information within the letter of instruction. This ‘scene setting’ can then be completed before drafting the main body of the narrative relating to the costs incurred in the particular deputyship year.

​In conclusion, and in response to those who still consider that costs officers may only ‘cast an eye over the narrative of the bill’, I would argue that our recovery rates dispute that claim and indeed, ‘it’s all in the narrative’.

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