The First Item on a Bill of Costs
The first item on a bill of costs is not an attendance or a letter. It is the receiving party’s legal liability to pay the costs being claimed. Without that, everything below it is unrecoverable however well it is drawn.
HD & Ors v North Devon Healthcare Trust & Ors [2026] EWHC 2009 (SCCO), Costs Judge Joseph, handed down 4 August 2026, is the clearest recent demonstration of that. Six detailed assessments were struck out, alternatively assessed at nil, and £92,000 already paid on account had to be repaid.
What Happened
The claims concerned defective consent processes for synthetic mesh in female pelvic surgery. They formed part of a much larger cohort: NHS Resolution had been notified of 305 claims, around 100 had reached letters of claim, and 58 had been compromised on substantially identical terms — damages plus recoverable legal costs.
The CFA covered the claim for damages and expressly included “Negotiations about and/or a court assessment of the costs of the claim”.
Why the Retainers Failed
Because the CFA said that, the retainer “necessarily” included the obligation to obtain agreement, or a court assessment, of the recoverable costs. The retainers were entire contracts, and completing the costs process was part of what the solicitor had agreed to do.
The former solicitor abandoned the matters. That was a repudiatory breach, which the claimants accepted by ceasing to instruct him, and there was no prospect of the obligation ever being completed. The retainers were therefore unenforceable, and the claimants had “no liability to their solicitor for any costs which were incurred” under them.
The Indemnity Principle Does the Rest
The step from there is short and unforgiving. A receiving party cannot recover from a paying party more than it is itself liable to pay. If the liability to your own solicitor is nil, the recoverable sum is nil.
So the six detailed assessments had to be struck out, alternatively the bills assessed at nil — and the £92,000 in payments on account, made on the footing that enforceable retainers existed, had to be repaid. Retaining it would itself have breached the indemnity principle.
This is the same principle that produced the nil assessment in Kapoor v Johal, reached by a different route: there the bill claimed more than the client had been charged, here there was no enforceable liability at all.
Delay Can Finish a Costs Claim on Its Own
There had been more than three years of complete inactivity after the last preliminary issues hearing. The court found a serious abuse of the process of the court, with no realistic prospect of the assessments being pursued, and treated immediate strike-out as “the only realistic option, in order to do justice between the parties”.
The court considered an unless order for the six and rejected it as unrealistic: if that had been a workable course, “the claimants in the 6 linked claims would have appeared on the hearing”. Nobody did. Strike-out was the only remedy left.
For the wider cohort who had not commenced assessment at all, the court did make an unless order under CPR 47.8: commence within 28 days, failing which “all of the costs to which they would otherwise be entitled will be disallowed”. Two different remedies, chosen by how far gone each group was.
Dormancy is not neutral. A file that sits is a file whose costs entitlement is decaying, and the three-month period for commencing under CPR 47.7 is the start of that clock rather than the end of it — the sequence is set out in our recovery checklist.
Signing the Bill Is Not Consequence-Free
An earlier assessment in the cohort had produced reductions of this order:
- Letter of Claim — 63.3 hours claimed, 15 allowed;
- Letter of Response — 66.1 hours claimed, 10 allowed;
- Schedule of Loss — 31.3 hours claimed, 7.9 allowed.
The judge described these as “reductions which one would not normally expect to see in claims for costs of this nature”, held that “the making of a claim for costs, and the signing of a bill of costs which makes very high and unsustainable claims for costs, is itself unreasonable”, and made costs orders against the former solicitor under CPR 44.11, including on the indemnity basis, describing the conduct as well outside the norm.
Note what engaged CPR 44.11(1)(a) alongside the billing: a failure to lodge the documents required by PD 47 para 13.11 before a two-day hearing, which was rendered ineffective as a result. The rule bites on procedural default as readily as on the contents of a bill.
Read alongside Ward v Rai, the pair make a useful point about where risk actually sits. Ward shows a receiving party cannot rely on a paying party’s defective Points of Dispute rescuing a badly presented bill. HD shows that serving an aggressively drawn bill carries its own exposure, to the person who signs it.
What This Case Does Not Decide
The facts here were exceptional, and the case is more useful stated narrowly than stretched. HD does not decide that:
- every solicitor who stops acting loses the entitlement to costs;
- every terminated CFA is unenforceable;
- every CFA must stay open until detailed assessment concludes;
- a heavily reduced bill is evidence of misconduct;
- every error in a bill engages CPR 44.11;
- a costs order is worthless unless the paying party is shown the CFA;
- payments on account are routinely reclaimable; or
- delay in detailed assessment is generally an abuse of process.
What produced this result was a combination: a CFA that expressly extended to the costs process, a repudiation of it without good reason, contractual work left incomplete, a practice that had ceased trading, a solicitor since struck off, more than three years of unexplained inactivity, and an application nobody appeared to oppose. For five of the six retainers the court inferred substantially similar terms because no contrary evidence was put before it.
Cited as authority for a general proposition, it will be distinguished on any one of those features. Cited for what it actually holds — that an entitlement which fails at the retainer cannot be repaired further down the chain — it is difficult to answer.
What Claimant Firms Should Take From It
- Check the retainer before the bill. An entitlement problem cannot be drafted around.
- Read what the CFA says it covers. If it covers the costs process, that work is part of the contract rather than an optional extra.
- Commence detailed assessment in time, and do not let a matter go dormant.
- Claim what is sustainable. A signature on a bill is a representation about it.
- Remember a payment on account is provisional. If entitlement fails later, it can be ordered back — see how a payment on account is calculated.
How DMD Costs Can Help
We prepare and negotiate clinical negligence costs for claimant solicitor firms, and reading the retainer is part of drawing the bill rather than a separate exercise. Every clinical file is subject to senior technical review.
A clinical file usually arrives with a long history behind it, which is why the entitlement questions are worth settling early rather than at service. Our guides to the clinical negligence Bill of Costs and Precedent S and to costs budgeting in high-value claims deal with the other two points on the same chain — what the budget permits, and what the bill can then recover.
Send us the file and we will confirm the fixed fee before any work begins.
A Note on Sources
This note was written from the approved judgment published by the National Archives rather than from secondary reporting. The former solicitor is not named here: the case name carries the point, and the lesson for claimant firms does not depend on who it happened to.