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1. All time spent by a fee earner should ideally be recorded on the file. Estimates are not generally allowed and, if in any doubt, the file should be considered. It is solicitor’s practice to keep reasonably comprehensive records of time spent and more particularly how that time was spent. There are exceptions where unrecorded time may be allowed if the assessor is satisfied that it was impracticable to record the time taken. However this should only be considered in relation to short periods of time and any substantial period of time should be recorded.

2. There are basically two forms of time recording. One centralised, the other on the file.

3. The first, centralised, form of time recording seldom provides adequate information to assess costs. In a growing number of cases it will be computerised and a computer printout can be produced for each client showing who did work, when the work was done, the time taken and, usually, the broad category of such work - e.g. attendance, considering documents, letters etc. Such a record may be useful but are only helpful if:

(a) Letters and telephone calls are usually charged on a time basis and not on an item basis;

(b) there is a reflection of publicly funded rates of pay. In any event, the time recorded would need to be evidenced by some other means ;

(c) sufficient information is given to judge what was the work done or whether that work done was reasonable.

4. However computerised records are becoming increasingly sophisticated and may well in future provide more help to the assessor.

5. The main information to assess costs is the claim form and information from the file.

Primarily such information will be of two types: (a) Letters;

(b) 'Attendance Notes' of work done, attendances on the client and others and telephone attendances.

(c) Documents.

6. The above need to be viewed in two ways. The first is that it is the basic information upon which the claim can be arithmetically assessed. Letters are in general remunerated on an 'item' basis as are the majority of telephone calls. Time spent on more complex letters and telephone attendances as well as on personal attendances, drafting documents and preparation should be recorded on attendance notes. The total time so recorded is calculated by reference to the hourly rate.

7. That is an overly simplified view of the assessment process. The assessor has to exercise a discretion as to the reasonableness of the work done and the amount claimed. The contents of the letters and attendance records are secondly, the vital information in exercising this discretion. It is only by reading the file through, initially quite quickly, that the assessor can make a judgment as to the weight and complexity of the case and the particular problems with which the solicitor had to deal. In all but the smallest claims this is the first step to assessment.

8. It is good practice for a solicitor to record and prepare attendance notes for all of the time he spends in attendance and preparation. Whilst it is not an obligation the position may be summarised by ‘if you do not record, you are unlikely to be paid’. Bills may well be submitted where preparation time especially is claimed as "general", "estimated" or "various”. These claims should generally be disallowed if they are not recorded, or backed up by an attendance note. The absence of recorded time for any substantial amount, would be allowed only in a most unusual case – see 2.7.7.

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"Claims for unrecorded time are likely to be viewed with very considerable care on taxation and it would only be in an unusual case that any substantial allowance be made...".

10. In Bush v. Bower Cotton & Bower [1993] 4 ALL ER 741 Brooke J said: “Work properly and reasonably done in furthering the client’s interests may reasonably include the preparation of attendance and file notes recording what has been done”.

11. If an assessor is in any doubt about time, that doubt must operate against the solicitor whose bill is being assessed. It should be noted that the proper recording of time spent is only the first step. The solicitor is required to provide adequate evidence that work was properly and reasonably done. If the solicitor fails to do so, the work should not be allowed. The assessor must be satisfied that it was reasonable to spend time on the particular item of work and that the time charged is reasonable.

12. Even where preparation has been fully recorded with many entries with exact timings on precise dates, this does not mean that all the recorded time must be allowed. It must still have been reasonable to undertake the item of work claimed and the amount of time spent reasonable. Assessments of all time spent must be made with this in mind.

13. The assessor must consider whether the attendance note contains sufficient information to justify the time spent or whether there is other supporting evidence on file of the work done. Where the attendance note does not justify the time spent the claim must be reduced to the amount of time, if any, justified by the evidence on the file (e.g. a statement of the client’s instructions). As well as looking carefully at individual attendance notes it is important to look at the total time claimed for advising on particular issues or considering or preparing particular documents in order that any duplication of work can be identified and an assessment made of the overall time spent.

14. Standardised attendance notes, without any confirmation or reference to specific instructions obtained from or advice given to the client are not satisfactory evidence of the reasonableness of the work done for any but the briefest of attendances. If standardised attendance notes are used they should reflect the particular circumstances of the attendance. Handwritten notes are allowed provided the assessor can identify what they relate to. There is no requirement that attendance notes should be typed up. If they are, then a reasonable time, may be allowed for time spent dictating an attendance note where it is reasonably lengthy and detailed.

15. In particular, any individual attendance note for providing advice or taking instruction over two units (12 minutes) should contain some detail showing the instructions taken or the advice given or how the case was progressed. This does not mean that every word of the advice given as to the law and procedure needs to be recorded – often advice on a particular procedure will be relatively standard, but one would expect to see some reflection in the attendance note of the personal circumstances of the client and the advice given on the case. The longer the attendance claimed, the more detail would be expected. In the absence of either such detail or of other appropriate supporting evidence it would normally be appropriate to reduce the attendance allowed to two units (12 minutes).

16. Appropriate supporting evidence could include:

(a) Handwritten notes of the interview with the client.

(b) Documentation prepared in the course of or as a result of the interview. For example, an attendance on a witness to take a statement could be evidenced by the presence of the statement on a file.

(c) Letter confirming the advice given to the client on an attendance. 2.8 Preparation

1. This item, sometimes, misleadingly referred to as 'documents', may well contain most of the work that has been necessary to prepare for the trial of an action. The relationship of some work to 'documents' is tenuous although most of the work done will in the end result in the production of the main court documents (the statements of case/pleadings), instructions to counsel, briefs and bundles of documents. It is in reality part of the general preparation of a case which will include:

(a) drafting of court documents;

(b) consideration of statements or documents served by the other party; (c) instructions to counsel to advise in writing and/or at a conference; (d) consideration of documentary evidence;

(e) general consideration from time to time of the strategy or tactics required to bring the action to court;

(f) consideration of or making offers to settle/payments in to court;

(g) reconsideration of the court documents, evidence and other factors in order to prepare for trial;

(h) brief to counsel and instructing expert witnesses and holding conferences;

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NB: This is not a definitive list

2. There is inevitably a potentiality for overlap between this and work done in relation to disclosure. The latter should include only the work which is necessary to prepare lists of documents, produce those documents, obtain documents from the other party and, if necessary, make or defend any applications for specific or further disclosure. This may include some consideration of the documents produced by each party and their relationship with each other.

3. In any but the simplest cases there will be need from time to time to re- examine the core documents to consider their effect on the case. The numbers can vary from a mere handful to warehouses full - though few of the latter will arise in publicly funded cases.

4. The times spent should be recorded. An attendance note should show the time spent in preparation of any particular documents. A judgment has to be made - without the advantage of hindsight - whether that time was reasonably spent. It must be remembered that until he has read the documents the solicitor will not know the significance and in any but the simplest cases the limited reading at the discovery stage is not likely to be sufficient. A competent solicitor will read the documents and put those which are relevant or helpful to his case in a separate folder so that they (or copies) can be readily accessed. In larger cases he may well prepare an index. It is becoming increasingly common to 'scan' such documents on to a computer file which has considerable advantages in terms of ease of access and in particular ease in finding and comparing relevant passages. Whilst the work of scanning is, of course, not fee earner's work, the selection of documents to be scanned is.

5. The difficulty is determining which documents are relevant. It is accepted that a brief, and quick, perusal of the documents may be necessary in order to identify which documents are relevant. Having done that, the sufficiently competent and experienced solicitor should be able to identify the key issues and only consider in more detail those documents which are most relevant. It would not be reasonable to allow the solicitor to have carte blanche to consider in detail all documents regardless of whether or not they are relevant. On the other hand, it must be acknowledged that some amount of time is required to briefly peruse the documents to ascertain which are relevant and which are not, and some payment should be allowed for doing that.

6. More care needs to be taken with regard to repeated consideration of documents. The degree to which this will be justified depends entirely on the complexity of the issues. In small to medium cases re-examination of the papers should be necessary primarily on reviewing the case prior to briefing counsel or instructing him to advise on evidence and again when trial bundles have to be prepared in conjunction with the other parties. The time spent on both these will inevitably be considerably less if the solicitor has at an earlier stage separated the most relevant documents that are likely to be of use in court. Where this has not been done time spent in reading through all the documents may not be reasonably spent.

7. If in doubt the assessor must have sight of attendance notes and copies of the documents concerned or at the very least full details of the type of documents concerned and the number of pages involved. With the ‘run-of-the-mill’ smaller cases it will be fairly easy for the caseworker to determine what is reasonable without necessarily having sight of the solicitor’s file of papers, but with the larger more complex claims especially investigating negligence claims where proceedings are not issued, sight of the paper-work and a full description of the documents involved from the solicitor will be essential. 8. Point of principle CLA6 states:

"Where claims for costs are made for perusal of unusual or substantial papers and the assessor/area committee is minded to disallow those costs in whole or in part it will normally be necessary for the papers in question to be considered”.

9. As a very rough guide it takes approximately 2 minutes per A4 page to read the most simple prepared document in order to consider its contents and significance. Time taken will depend on the quality and layout of the document e.g. whether handwritten or typed, single or double spaced, large or small font etc. Documents of greater complexity may take a longer time either to read, compare with other documents or prepare e.g. it may take 20 minutes or more to read a complex medical report although this will depend on the skill and knowledge of the fee-earner reading it. For some less experienced staff more time may be taken whilst a senior practitioner who specialises in medical negligence would take less. It will not always be reasonable for the proper conduct of the case to read every page of every document in detail.

10. There are cases where detailed examination of previous records is essential in order to progress the case properly. For example, in building disputes there will be many documents vital to the case like the contract, specification documents; plans; correspondence between the owner, architect and builder, architect's instructions, minutes of site meetings, time sheets, invoices, delivery notes and many others. Another example of where very careful consideration of the records is likely to be justified is that of medical negligence.

11. Point of principle CLA7 deals with documents in medical negligence cases but may also be relevant to other cases where a large number of documents are involved.

Point of Principle CLA 7 states:

“It is reasonable in medical negligence cases for the funded client's solicitors to consider in detail copies of the medical records relevant to the issues in the case.”

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12. This is subject to two qualifications.

(a) Firstly, although the solicitor must have a general knowledge of what is in the medical records it is not uncommon for the records to be supplied to the plaintiff's medical expert who then takes on the responsibility of examining and often indexing the records. It would not be reasonable for both the solicitor and the expert to be paid for detailed examination of the notes.

(b) Secondly it is increasingly common for firms handing a significant amount of clinical negligence work to employ (usually) nurses for this (and other) tasks. It will be a question of fact in each case whether the work being done by such staff is being done by a fee-earner - and therefore directly chargeable at the prescribed hourly rate - or by a non fee-earner whose costs must be subsumed in the general overheads of the practice. See Point of Principle CLA 12:

'Work carried out by an in-house medico-legal assistant will generally be fee earning work. The hourly rate and mark-up applicable will be what is appropriate in all the circumstances having regard to the nature of the work carried out and the special skills and qualifications possessed by the person concerned'

13. In funded cases assessed under the Civil Remuneration Regulations, this option is not possible as all work done is charged at a prescribed hourly flat rate. 14. The length and content of the court documents together with the statements of

witnesses should be considered particularly if lengthy attendances are claimed. To consider the reasonableness of the time spent preparing documents it will normally take 6-12 minutes preparation to consider and dictate each page of a straightforward document. More complex documents take longer. Any lengthy attendances must be supported by a file note, or letter confirming the advice given. Time spent attending on the client may not correlate with the length of the statement prepared, but for longer attendances an assessor would expect to see more detailed justification. There are circumstances which may effect the length of the attendance, e.g. language difficulties, mental health problems, other disability or the complexity of the case. These should be clearly identified by the solicitor when justifying the additional time spent.