Use of Counsel does not mean Solicitor hourly rates should be reduced
Posted on 21st January 2022 at 09:35
By Sean Linley, Costs Draftsman
The SCCO have looked at the relationship between the use of Counsel and the hourly rates claimed by the solicitor in the case of R v Barts Health NHS Trust  EWHC B3 (Costs) (06 January 2022).
The claim related to judicial review proceedings, a number of issues were dealt with but what is of particular interest is how Costs Judge Rowley dealt with a dispute over the hourly rates claimed.
Hourly rates of £315.00 (A), £275.00 (B), £235.00 (C) and £140.00 (D) which was against National Band 1 rates of £261.00 (A), £218.00 (B), £178.00 (C) and £126.00 (D).
Costs Judge Rowley first stated that there could be no criticism of a party who instructs a solicitor in a less expensive part of the country, as he noted the Claimant resided in a hospital in Whitechapel, London E1.
The second question to grapple with was whether the hourly rates were reasonable for a firm in the location of the Claimant's solicitors, who were a National Band 1 firm.
The Defendant sought to argue that the "baton of responsibility and importance to the claimant" had been passed to leading and junior counsel and "that the solicitors relied heavily upon counsel's specialised knowledge and skill to take the case forwards". The Defendant contented that "the claimant’s solicitors did not “have to exercise any more skill, effort and specialised knowledge than that of an un-specialised solicitor.”
The Defendant accepted it was a complex claim, however, averred that experienced Counsel were familiar with the issues and points of law in the case and that the "degree of skill, responsibility and expertise reasonably required of the Claimant's solicitors was minimal."
Costs Judge Rowley rejected the Defendant's argument that the 2021 Guideline Hourly Rates were not the relevant starting point (yet another string to the bow of this argument).
49. I have already determined that the 2021 rates would be the starting point in this case. That seemed to me to be the main argument regarding the hourly rates in themselves. The defendant has offered figures that are above the 2010 guideline rates but below the 2021 version. If a similar increase above the 2021 guideline rates was calculated it would reach figures approaching the rates actually claimed, even though they were offered on the basis of the solicitors taking little responsibility or demonstrating any real skill.
50. Given the vital nature of these proceedings, it seems to me that the hourly rates claimed are in fact entirely reasonable and that there is little need to go through the seven pillars of Wisdom (ignoring the budgeting aspect) in CPR 44.4(3) in any detail. In particular, it is hard to imagine any case involving more importance to the client or, given the need for urgent action, one which would score more heavily on the circumstances in which the work was done.
The Court accepted that there would be cases "where the subject matter does not require the need for specialist solicitors or only needs a junior solicitor to carry it out in an appropriate fashion. In such cases, the hourly rate that can be recovered will be reduced to a non-specialist firm or more junior solicitor rate."
Costs Judge Rowley noted that the Defendant had not argued that the case did not require specialist expertise but rather that the Claimant's solicitors did not display their skill in the case at hand.
53. The defendant says that by the choice of its counsel and the nature of the arguments being run, the solicitors have rendered their own expertise unnecessary and as a result they should be reduced on a between the parties’ assessment. It might be said that the choice of expert counsel was perhaps a reflection of expert solicitors. But leaving that to one side, it is in my view, a remarkable suggestion that a case whose own weight clearly justified using expertise to pursue it, can be downgraded in the choice of an appropriate solicitor by that solicitor’s choice of external assistance.
Costs Judge Rowley considered the papers between the solicitors and counsel and concluded thus:
54. It was this discussion which led me to make sure that I had the benefit of papers between the solicitors and counsel in order to form a view about the expertise on show. Having done so, I am clearly of the view that expertise was evident in the solicitors’ dealings with counsel. The papers reminded me of files seen where commercial law firms and leading and junior counsel are acting quickly in relation to injunctive proceedings with rapid return dates et cetera. There is very much a team effort between solicitors and counsel in terms of communication with other parties, the drafting of documentation, the strategy and so on. That is the clear impression I was given in this case by reading the correspondence and documents with which I was provided.
55. I therefore conclude that the solicitors not only had the requisite skill, effort and specialised knowledge and responsibility appropriate for this grave case but also demonstrated it in their dealings with counsel and other solicitors. There is no warrant in my view for there to be a reduction in the hourly rates claimed simply on the basis that counsel was also involved in dealing with matters. The issue on assessment will be whether there was too much involvement of counsel, as the defendant contends. To the extent that the defendant is correct then either the solicitors’ charges or counsel’s fees will be reduced. But that does not mean that the hourly rates claimed by the solicitors should be reduced in any event.
56. Accordingly, I allow the hourly rates as claimed.
R v Barts Health NHS Trust  demonstrates that the use of Counsel and a reduction to hourly rates will not necessarily go hand in hand. It is evident cases will turn on individual facts but it is good to have a published example of a Costs Judge recognising that it is too simplistic to equivocate the instruction of Counsel with a reduction in the skill, expertise and responsibility of the solicitor.
It is also yet another example of the 2021 Guideline Hourly Rates as the starting point for assessment, even where time was spent predating their formal adoption. This principle seems to be widely accepted by the judiciary and should given receiving parties confidence at recovering rates above and beyond the earlier Guideline Hourly Rates (subject to the indemnity principle).
An interesting side issue was considered by Costs Judge Rowley as to the perceived lack of detail in Counsel's fee note:
"In relation to the perceived inadequacy of detail in counsel’s fee notes, there is nothing in my view which requires the receiving party to provide any particular level of information regarding the fees that are claimed. The sums claimed are set out in Counsel’s fee notes and that is sufficient for purposes of the indemnity principle. Thereafter, it is a matter for the receiving party as to whether or not it can prove that the fees incurred were reasonable in nature and amount. To the extent that there is inadequate explanation on the fee notes, it is the receiving party which takes the risk since the benefit of the doubt will be exercised in favour of the paying party. I do not propose to make any form of order which requires further information to be provided."
A reminder that where inadequate information is provided that doubt will be given in favour of the paying party. Ensuring adequate information is given at the outset is vital to boosting the prospects of recovery at assessment.
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