Notes Can Pay

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The benefit of fully detailed records of the time which you have spent on a file cannot be over emphasised both in relation to LSC Assessments and costs between the parties. 

Most firms nowadays operate computer time recording systems, which allow varying amounts of narrative to accompany each entry. Some systems allow a full narrative of the work which is being done and contain exactly the same wording as would appear on the note on the file. 

Other systems simply have codes for categories of work and with such systems it is vitally important that the time recorded on the computer print out under a particular category of work is also accompanied by a note on the file itself giving details of the nature of the work which was being done as well as the time involved. 

As far back as 1978 this was identified in Re Kingsley (1978) 122 Sol Jo 457 in which it was said: -

“I ought to add that this case illustrates the dangers which are present if reliance is placed on a modern system of recording, without at the same time retaining the old and well tried practice of keeping attendance notes showing briefly the time taken and the purport of the work done day by day.  It may be that this case will invite attention to the importance of appreciating the limits to which the computer system can be used in cases where taxation of costs must follow litigation and to the necessity of preserving as well the use of the traditional system.”

As to how much detail a file note should contain the emphasis really must be placed on the word “detailed”. If for example you have to spend longer than usual considering a Guardian Ad Litem’s Report or Medical Report then the note should contain details of why the task took the time it did. 

This could be for example because you also re-read a certain part of the file or looked back over witness statements or earlier instructions etc.  If the note makes this clear rather than just containing an entry “reading Guardian Ad Litem’s Report” then there will be far more chance of recovering the time on assessment by the LSC or by the Court.  It will also make it more difficult for any paying party to object to the time spent.

Sometimes the work which has been done results in some tangible evidence which can be produced in order to justify the time.  Examples would be where the note records the preparation of a witness statement or instructions to Counsel, etc., in which case the actual document which has been drafted can be produced to justify the time spent even if there is only a short file note. 

With other sorts of work done however, there is often no evidence of the work done other than the actual time record itself.  If there is an attendance on client or if you are simply considering tactics and the way forward no document is necessarily produced and it is vitally important that your record of that time contains full details of what precisely was being done and the reasons. 

Even in the case where some document has been produced as in the example of a witness statement mentioned earlier, it is far more desirable to have a detailed time recording note rather than rely on the evidence of the document itself.  The reason for this is that the document is often not evident to a paying party or to the LSC and is only actually considered when there is some dispute about the costs at an Assessment, Costs Review or Appeal. 

Obviously, it is beneficial not to reach that stage and detailed file notes can only help.  In most Detailed Assessments which we attend there are disputed items which are allowed when the Costs Officer or District Judge actually sees the instruction to Counsel or statement, etc., but which would not have been justified by the time recording of that work done on its own.  A detailed note can avoid the delays in reaching that stage.

It can of course be difficult to spend time making detailed file notes of work that has been done because of pressure of work and heavy case loads, as it is sometimes seen as unproductive work. 

It should however be borne in mind that in Brush v Bower Cotton and Bower [1993] 1WLR 1328 it was held that an allowance may be made for the preparation of attendance and file notes recording what work has been done where they furthered the clients interest.  If therefore you have to spend time preparing a long detailed note of what you have discussed with the client or a note justifying the time you have spent considering a particular report or piece of evidence then you should also make sure that you record your time for preparing the note itself. 

The case of Brush v Bower Cotton and Bower mentioned above is often raised to justify a disallowance of estimated time as it was stated in that case that only in an unusual case will any substantial allowance be made for unrecorded time. 

The position is not as straight forward as that might suggest.  In Re Frascati (in chambers)(2nd December 1981 unreported) it was said by Parker J that: -

“The right to charge cannot depend upon the question whether discussions are recorded or unrecorded.  It must depend initially upon whether they in fact took place and occupied the time claimed.  If they are recorded in attendance notes then this will no doubt ordinarily be accepted as sufficient evidence of those facts.  If they are not so recorded it may well be that the Claimant is unable to satisfy the Taxing Officer or Master as to the facts.  But neither the presence nor the absence of an attendance note is conclusive.”

This view was repeated in the more recent case of Jemma Trust Company Limited v Liptrott and Forrester (No. 2)[2004] Costs L.R.610 in which Mr. Justice Hart said: -

“The criticism that is made is that there is no distinction to be drawn between contentious and non contentious work so far as the obligation to keep attendance notes is concerned.  As to this, while I agree that the function of attendance notes is precisely the same in both kinds of work so far as assessment is concerned, it seems to me wrong to speak of an “obligation” to keep attendance notes.  That language suggests that failure to keep attendance notes is a duty, breach of which would be visited by the sanction of total or partial disallowance. 

The true position is that in both kinds of work the burden is on the solicitor not only to show that the time claimed has been spent but that it has been reasonable to spend that time.  The keeping of an attendance note is one way, but not the only way in which this can be demonstrated.  Failure to keep such notes exposes the solicitor to the risk of being unable to prove the reasonableness of the time spent.”

It can be seen therefore that the burden of proving the reasonableness of the time spent is on the solicitor.  If no record of the time is made then this is not fatal but it will be more difficult to justify the time. 

If there is a very brief time record or simply an entry from a computer print out then this is clearly going to be better than no record at all and an estimated item in a Bill but practitioners will have by far the best chance of recovering the time that they spend on a case if they have detailed notes justifying how it was spent.

It is of course impossible to give any exhaustive advice on precisely how much detail is required and how long a file note should be but if you always have in mind the burden of proving the reasonableness of the time spent then this should assist in producing adequate file notes. 

One specific example which we have found particularly useful on LSC assessments whether it be Bills or Claim 1’s is that if documents, medical records, school records etc are being considered then the number of pages, records or entries should be clearly stated on the file note in order to justify the time. 

We hope that the above information is useful to Practitioners. Please feel free to copy this article for circulation to fee earners. 

If you would like us to assist any further please do not hesitate to contact us. 

We have in the past conducted training and seminars with fee earners in order to help with time recording and other costs issues and will be happy to visit you to do likewise if that would be of interest.