Duffy v Birmingham City Council [2026] EWCA Civ 146
bill of costs — 2026-02-25
A missing tick-box on the bill certificate does not render a bill of costs invalid. The solicitor's signature implicitly certifies compliance with the indemnity principle. Paying parties must raise objections in their points of dispute, not ignore the bill and argue nullity after a default costs certificate is entered.
Overview
Date: 25 February 2026
Court: Court of Appeal (Civil Division)
Judges: Lord Justice Phillips (lead), Lord Justice Newey, Lord Justice Nugee
Citation: [2026] EWCA Civ 146
Key Issue: Whether a bill of costs lacking express certification of compliance with the indemnity principle is invalid and a nullity
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The Facts
Daniella Duffy was a council tenant who brought disrepair proceedings against Birmingham City Council. The claim settled in October 2022 by consent order, with the Council ordered to pay Duffy's costs to be subject to detailed assessment if not agreed.
On 16 November 2022, Duffy served a bill of costs totalling £26,809.60. The bill was signed by her solicitor — but the solicitor had failed to tick the box expressly certifying that the costs claimed did not exceed the costs which the receiving party was liable to pay. In other words, the express indemnity principle certification was missing.
The Council failed to serve points of dispute within 21 days as required by CPR 47.9. Duffy obtained a default costs certificate on 9 January 2023.
The Council then applied to set it aside. Having initially argued that service was invalid, they later contended that the bill was a nullity because it lacked the express indemnity principle certification — and therefore could not have commenced detailed assessment proceedings at all.
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The Issue
Was the bill of costs invalid and a nullity by reason of the missing certification, such that it was incapable of commencing detailed assessment under CPR 47.6? Or was the omission merely a procedural defect?
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The Decisions Below
At first instance, District Judge Rouine set aside the default costs certificate, finding that service of the bill by email had been invalid. On appeal, HHJ Najib reversed that decision, holding that the Council had indicated it would accept service by email. The Council then appealed to the Court of Appeal, where — with permission from Asplin LJ — it raised a new argument (previously conceded below) that the bill was a nullity due to the missing indemnity principle certification.
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The Court of Appeal's Decision
The Court of Appeal dismissed the Council's appeal and held that the bill was valid despite the missing certification.
The Key Reasoning
1. A solicitor's signature implicitly certifies compliance with the indemnity principle
Phillips LJ held that a solicitor's signature on a bill of costs is in itself confirmation that the bill complies with the indemnity principle, given the solicitor's position of trust as an officer of the court. This followed Bailey v IBC Vehicles Ltd [1998], which established that a solicitor's signature constitutes certification that the receiving party's solicitors are not seeking to recover more than they have agreed to charge their client.
As Phillips LJ observed, Bailey "is not support for the importance of the mandatory certificate confirming compliance with the indemnity principle. Indeed, the exact contrary is the case."
2. Procedural defects do not equal nullity
Not every failure to comply with a mandatory provision of the CPR renders a document a nullity. The Court applied CPR 3.10, which provides that procedural errors do not invalidate steps taken unless the court orders otherwise.
Phillips LJ endorsed the reasoning in Choudhury v Islam (2021), which held that permitting a bill's automatic invalidation for technical non-compliance would reward indolence and was contrary to the need to conduct litigation proportionately and efficiently.
3. The missing box is a minor error
The Court stated:
> "Whilst the express certification that the bill complies with the indemnity principle is a mandatory requirement under the rules, there is no justification for treating a breach of that requirement as fatal to the validity of the bill any more than any other breach. Indeed, given that the signature of the bill constitutes implicit certification, it may be seen as a less serious error than many others."
4. The paying party's remedy is to serve points of dispute
The proper remedy for bill defects is to serve points of dispute — potentially requesting that the bill be struck out and reissued. It is not to ignore the bill entirely and then argue nullity after a default costs certificate has been entered.
5. A costly lesson in proportionality
Phillips LJ noted the staggering disproportionality of the Council's approach. The Council's attempt to revive its entitlement to challenge a bill of £26,809.60 had already involved three hearings and two different unsuccessful challenges. Its own costs for the Court of Appeal appeal alone were over £45,000 — on top of the £7,000 it was ordered to pay by HHJ Najib, and before considering its further liability for adverse costs.
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Key Takeaways
1. A signed bill is an implicitly certified bill. The solicitor's signature on a bill of costs operates as implicit certification of compliance with the indemnity principle, regardless of whether the express certification box is ticked.
2. A missing tick-box does not invalidate a bill. The omission is a procedural defect, not a nullity. CPR 3.10 prevents procedural errors from automatically invalidating steps taken in proceedings.
3. If there is a problem with a bill, put it in your points of dispute. The paying party's remedy is to engage with the assessment process — not to sit on their hands and then argue the bill was void.
4. Default costs certificates are robust. Paying parties who fail to serve points of dispute within 21 days cannot easily escape the consequences by attacking the bill's validity on technical grounds.
5. Litigating by technicality is expensive. The Council's attempt to avoid a £26,809 bill cost them over £45,000 in their own costs for the Court of Appeal appeal alone, plus £7,000 from the hearing below — a cautionary tale for paying parties tempted to run procedural arguments rather than engaging with the substance.
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Citation: Duffy v Birmingham City Council [2026] EWCA Civ 146
Full judgment: National Archives
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