What Happened
In Kapoor v Johal [2024] EWHC 2853 (SCCO) a bill of costs claiming £258,583.78 was assessed at nil. The client had been invoiced in the region of £84,000. The court found the bill sought to recover far more than the client was ever liable to pay, exercised its powers in relation to misconduct, disallowed the costs in their entirety, and awarded the paying party the costs of the assessment on the indemnity basis. A referral to the regulator followed.
The bill had been drafted by an external costs draftsman. That detail is why this case belongs on this site rather than being quietly left alone.
The Principle It Turns On
The indemnity principle is short: a receiving party cannot recover from the paying party more than the client is liable to pay their own solicitor. It is a ceiling, not a target. Where interim statute bills have been delivered, those bills are the evidence of what the client was actually charged, and the bill of costs has to reconcile with them.
A gap between the two is not a presentational problem to be argued about at assessment. It goes to whether the sum claimed was ever recoverable at all.
The Rule That Produced a Nil Assessment
CPR 44.11 gives the court its powers in relation to misconduct. It applies where:
- a party or their legal representative fails to comply with a rule, practice direction or court order in connection with a summary or detailed assessment (CPR 44.11(1)(a)); or
- it appears to the court that the conduct of a party or their legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper (CPR 44.11(1)(b)).
Where it applies, the court may:
- disallow all or part of the costs being assessed (CPR 44.11(2)(a)); or
- order the party at fault, or their legal representative, to pay costs caused to another party (CPR 44.11(2)(b)).
Assessment at nil is the far end of that discretion and it is rare. What makes the case worth reading is not the rarity of the outcome but how ordinary the failure was that led to it.
The Check That Was Missed
Reconciling a bill against the interim statute bills and the client ledger is arithmetic. It takes very little time on most files. It is also the one check whose omission puts the whole bill at risk rather than a line of it.
Most bill defects cost something. A certification defect, for instance, is serious but survivable — we cover what one does and does not do in Duffy v Birmingham City Council. An indemnity principle breach of this kind is different in category, because it is not a defect in how the claim was presented but a claim that should never have been made.
What a Costs Draftsman Should Be Doing
Instructing an external draftsman does not move the risk. The bill is served by the instructing firm and certified on its behalf, and the firm remains answerable for it. That is the ordinary position, and it is what the Court of Appeal confirmed about delegated work generally in CILEX v Mazur: the authorised individual retains direction, control and responsibility.
What a draftsman can do is make the check impossible to skip: ask for the interim bills and the ledger with the papers, reconcile the claimed figure against them before the bill is drawn, and raise it rather than proceed where the numbers do not agree. It is an unwelcome conversation occasionally. It is considerably less unwelcome than this case.
Practical Checks Before Service
- Has every interim statute bill been provided to whoever is drawing the bill?
- Does the total claimed reconcile with what the client was actually charged?
- Where the retainer changed, is each period charged on the right basis?
- Are disbursements claimed at what was paid, with vouchers available?
- Does the certification say something the person signing has actually checked?
- If the figures do not reconcile, has that been resolved rather than presented?
How DMD Costs Can Help
We prepare and negotiate claimant costs for solicitor firms, and the reconciliation above is part of drawing a bill rather than an extra. If you would like a bill drawn, or an existing one reviewed before it is served, send us the file and we will confirm the fixed fee before any work begins.
A Note on Sources
This note is drawn from reports of the judgment rather than from the transcript, and figures are given as reported. The individual practitioner is not named here: the case name carries the point, and the lesson does not depend on who it happened to.