Bedtime Stories
In my last article ‘Time is Money’ in which I looked at the matter of fixed fees, I touched on the question of the need for case narratives, particularly in fixed fee cases.
As the LAA still maintains a need to produce narratives, I thought that I would look further into the question of narratives for both fixed fee and other bills and consider what purpose, if any, they serve and what their format should be.
The narrative attached to a claim report or bill is supposed to be a synopsis of the case which provides the paying party; individual, corporate body or the LAA and their assessors, with an outline of the matter to which the costs being sought apply.
The main features will be the initial incident and aftermath, development of the case and the work done by the relevant legal team in conducting the matter from start to finish.
I am old enough to remember when narratives were huge unwieldy affairs, worthy of publication as a three-volume novel. Some that I see still are!
The question is: did anybody then, or does anybody now, read them and are they necessary?
I suspect the answer is yes, but with some qualification.
Don’t get me wrong, in my early days as a costs’ draftsman I was as guilty as the next person for preparing long complex narratives that quoted chunks of medical reports, etc., all in an attempt to persuade whoever was going to assess the bill, or pay for it, that the relevant legal team, had a most difficult job in unravelling the complexities of the case and taking it to its conclusion.
I always thought I did a good job and that the string of ‘Assessed as Drawn’ responses from assessors, or agreements to pay as claimed arrangements, had arisen because of the persuasive power of my words; imagine my disappointment when a local DJ once told me that he, and his brother and sister judges, never read the narratives as it was too time consuming!
This situation was made even worse when we learnt that LAA assessors have such a limited time on each file that it is highly unlikely that they read the narratives either; which leads me to my original comment, “What is the need for a narrative in fixed fee cases?” A question that no one has ever answered.
However, my completely negative view on the matter of narratives has changed; not least because in a recent case I was dealing with, a comment made in the narrative, which implied that the paying party’s conduct of the case, or rather, in this particular instance their lack of conduct or action in failing to produce a case bundle and index, had resulted in the receiving party having to carry out the work instead.
Why this was important? Because the paying party for whom I was acting, was an Intervenor and there is no requirement for the Intervenor to prepare a bundle and index.
The comment led to a closer inspection of the work undertaken, as set out in the bill, which indicated that the receiving party might be trying to land the intervenor with the costs of preparing the main action bundle and index.
As you might expect, this has been challenged!
This got me to thinking about the dangers of over involved narratives.
I have long moved away from narratives that relied on prolixity to cause fudge and bamboozlement and have sought to move to a more punchy style, using bullet point paragraphs, to lay out the main points and arguments. These support the work done and put it into the perspective of the case and the work done in making that case to the court.
Whilst that might address the matter of narratives for detailed bills for assessment, where does that leave the question of narratives for fixed fee cases?
Having considered the point in greater detail, for the purposes of this article, I have concluded that the main point of a narrative in a fixed fee matter, is that it enables the claiming party to highlight the main issues, identify the structure (chronology) of a case and draw attention to the occurrence of specific events, e.g., advocates meetings or conferences or expenditure on specific disbursements at the behest of the court.
To that end, in the field that I deal in (Family Law), I have adopted a much more background history and chronology-based approach to narratives.
This provides an opportunity to set out the background and main aims of the case in maybe 2, 3 or 4 paragraphs, none of which need be too long. These might be germane in setting out the case for any special enhancements that you might be seeking.
These are followed by paragraphs setting out the results of specific hearings, where the details are required to support items of disbursement expenditure; particularly usually weighty items such as medical or other expert reports, etc.
Such an approach allows the narrative to zero in on the important points, without getting swamped with prolix prose and hopefully allow the assessor to pick up the salient points of directions made, which assist and support the request for payment that is the Solicitor’s bill.
High cost case plans are a case in point. They are perhaps the ultimate fixed fee case, particularly in care cases with the changes to the funding rules this spring.
For my case plan narratives, I set out a short background to the matter, followed by the key points, or main Issues in dispute and then refer to an attached case chronology.
The case chronology sets out conduct of the case to date, with details of directions for disbursement expenditure and any projected hearing dates, conferences, etc.
That provides a check for the conducting solicitor to ensure that all hearings, etc., are accounted for; a check for counsel’s clerk to ensure that any relevant fees have been accounted for and a check for the costs draftsman to ensure that he has collated and set out all the relevant information.
Oh yes – it also provides the assessor with an easy to manage and understandable document that supports the claimed items in the bill / claim.
So far, my new approach has not caused any problems; it may do in the future but in the meantime, I continue as I am, until the sky falls in!
One other point, particularly in family law cases, I always anonymise my narratives. Those involved have enough to deal with without the added burden of knowing, or guessing, that their potentially dirty linen is being washed quite so publicly.