When Are Litigation Costs Irrecoverable? Conduct, Authorisation and Assessment Risk Explained

Even where litigation work has been properly carried out, recovery of costs is never guaranteed. On detailed assessment, the court does not simply ask whether work was done, it considers how the litigation was conducted, who carried out the work, whether the work was proportionate, and whether it was properly authorised and supervised.

Reductions often arise not because the work was unnecessary, but because the way the costs are structured, evidenced, or presented creates avoidable assessment risk. Costs recovery ultimately depends on how litigation was conducted and how litigation costs are prepared and presented for assessment.

Conduct and the Risk of Reduction on Assessment

The conduct of the litigation is a central factor in assessment. Paying parties frequently argue that the receiving party’s approach led to unnecessary or disproportionate costs, even where the work itself was procedurally valid.

Common Conduct-Related Issues

Typical arguments include:

• Over-lawyering routine issues

• Pursuing marginal or low-value points

• Duplication of attendance

• Excessive internal communications

• Failure to narrow issues

• Unnecessary interim applications

Even where such work had a rationale at the time, the court may take a retrospective view when assessing proportionality.

Delegation, Fee Earner Grade and Supervision

Who performs the work can be as important as the work itself. Assessment often involves scrutiny of who carried out the work and whether it was appropriate for that individual. Assessment judges often scrutinise:

• Whether tasks were delegated at an appropriate level

• The balance between senior input and junior time

• The level of supervision evidenced

• Instances where high-grade fee earners carried out administrative or routine tasks

Inadequate delegation or unclear supervision can lead to reductions even where the work was otherwise reasonable. The assessment process is structured and evidence-driven rather than informal, reflecting how specialist costs are assessed in practice.

Authorisation, Role Allocation and Recoverability

Certain categories of work attract particular scrutiny, especially where:

• Multiple fee earners attend conferences or hearings

• Counsel and solicitors appear to duplicate roles

• Internal conferences or strategy meetings are frequent

• Time is recorded without clear purpose or outcome

Assessment outcomes often turn on whether the structure of the legal team and the division of work can be justified. Work carried out outside the regulatory framework governing recoverable costs creates significant risk at assessment.

Presentation Risk: Why Bills Fail Even Where Work Was Proper

A significant proportion of reductions arise from presentation rather than substance. Common issues include:

• Narrative descriptions that do not demonstrate purpose

• Block billing that obscures proportionality

• Failure to link work to issues or stages of litigation

• Inadequate evidence of complexity or importance

• Poor structuring of the bill

The court must be able to understand why the work was done and why it was reasonable in the context of the case.

Why Specialist Costs Input Reduces Risk

Because detailed assessment is governed by procedural rules and judicial guidance rather than local practice, specialist costs professionals are often instructed to:

• Structure bills to align with assessment principles

• Present work in a way that evidences proportionality

• Anticipate common paying party challenges

• Reduce exposure to conduct-based arguments

• Support negotiation and assessment proceedings

Early input frequently reduces both recoverability risk and the likelihood of protracted disputes.

Summary

Costs are not disallowed only because work was unnecessary. Reductions often arise from conduct, delegation, authorisation, proportionality, and presentation issues. Understanding how these factors influence assessment outcomes is essential for any party seeking to recover litigation costs effectively.