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Client: Leading specialist clinical negligence firm
Type of Case: Failure to diagnose the Claimant with melanoma
Our Instructions: To prepare a Bill of Costs and negotiate the costs through to settlement or detailed assessment
Result: Interim payment obtained within three weeks and an 83% recovery of legal costs within three months
Our solicitor client was instructed to represent the Claimant in a claim against a consultant for failing to diagnose the Claimant with melanoma in his hand. Following a five day trial, our client obtained judgment in the sum of £176,875.40 plus interest.
The Costs Issues
The costs of the claim were in excess of £600,000 and so the issue of proportionality was an important consideration. The Defendant also argued that the hourly rates were excessive and that there was good reason to depart downwards from the approved costs budget.
Upon confirmation of instructions, we set out in an email to our client all the documentation required in order to draft the Bill of Costs. Our client provided us their papers electronically, which we managed to access smoothly. Upon receipt of the papers, we provided our client with our Terms of Engagement and an Engagement Letter so that they had all relevant information to hand in relation to our instruction.
We provided our client with a likely timescale for completing the Bill of Costs, which in this case was one month given the level of costs involved.
The Bill of Costs was prepared by a single qualified costs lawyer with nine years' experience. As we began preparing the Bill of Costs, we established an effective line of communication with our client in order to obtain certain discrete elements of information to ensure that the costs were accurately included within the Bill of Costs.
Once the draft Bill of Costs had been completed, it was reviewed by another senior law costs draftsman in conjunction with the client's file of papers to ensure that all costs had been properly claimed.
The completed Bill of Costs was returned to our client together with a detailed three-page letter of advice within four weeks. The letter of advice covered important issues in respect of the costs claim and our approach to certain aspects that required consideration; it did not include unnecessary template scripts of text. At this point, we also collated all necessary documentation required to be served with the Bill so that our client could commence detailed assessment proceedings without delay.
Following consideration of the Bill of Costs, our client confirmed that they were pleased with the same. The Bill of Costs was certified by our instructing solicitor and served together with the bundle that we had prepared.
Our client had only obtained a nominal interim payment on account of costs thus far and so we advised our client in relation to a reasonable level of interim payment to seek from the paying party. In line with our advice, within the letter serving the Bill of Costs, an interim payment on account of costs was sought for 65% of the incurred costs and 90% of the budgeted costs.
The Defendant contacted our instructing solicitor two weeks after service of the Bill of Costs requesting an extension of time for service of Points of Dispute. At this stage, we advised our client to reinforce their request for a further interim payment and the Defendant agreed to make a further interim payment up to the level of their forthcoming offer of settlement. The Defendant's request for an extension of time was agreed.
The Defendant subsequently served Points of Dispute and shortly after made an offer of settlement in the sum of £350,000. The Defendant agreed to pay the same by way of interim payment, which was a substantial amount on account of costs for our client.
We provided a detailed written advice to our client regarding the objections raised within the Points of Dispute, as well as the offer of settlement. We undertook our own assessment of the Bill of Costs having regard to the objections raised by the Defendant and advised our client in relation to a reasonable settlement bracket.
Our client instructed us to prepare Points of Reply. We drafted robust Points of Reply that were clearly written and set out concisely the nature of grounds of our arguments. We constructed technical arguments in a succinct manner in respect of proportionality, the reasonableness of the hourly rates claimed and the absence of 'good reason' to depart from the approved costs budget.
The Points of Reply were served on the Defendant, together with a counter-offer that we had recommended.
Following service of the Points of Reply, a dramatically increased offer was received from the Defendant. The parties entered into negotiations over the following four weeks, during which we continued to provide our client with strategic recommendations. We negotiated a settlement at 83% of the Bill of Costs, which our client was delighted with.
Despite the costs being over three times the level of damages obtained, we ensured that we emphasised the other factors to be taken into account when considering proportionality under CPR 44.3(5), namely the complexity of the litigation and additional work generated by the conduct of the paying party. The claim required complex medical evidence in a range of disciplines and the Defendant denied liability, which ultimately led to a five day trial in the High Court of Justice.
To achieve this successful outcome, it was essential that we prepared a comprehensive Bill of Costs that contained a highly informative narrative and set out the costs in a clear and concise manner in order to justify the costs claimed and maximise recovery. Our knowledge of complex and evolving areas of legal costs also enabled us to draft Points of Reply that ultimately encouraged the paying party to increase upon their offer for 54% of the Bill of Costs to 83%. Our proactive approach also enabled our client to receive a substantial amount of money on account to improve their cashflow.
Our client was pleased with the result and provided the following review:
"It has been a great pleasure working with Athene Legal in this matter. You have provided an excellent service and have been responsive to all of our questions. You have put your expertise in legal costs on the full display and I look forward to working with you again on future matters."