Our learned friends

One of the more amusing notions in costs, religiously propagated in the comments section of the Law Society’s Gazette is that the costs judges are kinder to counsel, when it comes to assessing their fees, than that of solicitors’ fees. It simply is not so.

Rather in many cases, solicitors fees exceed significantly by some margin, in most cases, the fees of counsel, who by definition have far less to do with the day to day running of a case so there is more likelihood of a discount being applied, and applied more steeply to the larger sum in costs.

Moreover as I am so old and expensive now, I have to watch with studied equanimity my own fees being sliced in half on a regular basis by ungrateful judges, whose lives I have tried to make easier and more straightforward with skeleton arguments, case summaries, electronic bundles of authorities and so on.

Counsels fees are not assessed in the same way as a solicitor’s fees in any event. As Pennycuick J observed long ago in the still leading case of Simpsons Motor Sales (London) v Hendon Borough Council [1965] 1 WLR 112 the correct approach to considering the reasonableness of counsel’s fees-in that case the brief fee is as follows:

One must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre-eminent reputation. Then one must estimate what fee this hypothetical character would be content to take on the brief…There is in the nature of things, no precise standard of measurement. The taxing master employing his knowledge and experience, determines what he considers to be the right figure.

It is a source of some forensic regret that most cases settle, without a trial: there were far more substantial personal injury claims around 30 years ago, than there are today, most probably because the costs of running a substantial claim to trial are far higher, even when adjusted for inflation, and the consequences of losing, far worse either for the claimant’s lawyers who will not be paid, or the insurers, who face higher awards of damages, calculated in a far more sophisticated way than was common 30 years ago. But many settlements still take place in the runup to trial, and in recent years a case which regularly appears in the arguments, on the issue as to whether a brief fee is recoverable, after a brief has been delivered but before trial is that of Hankin v Barrington a decision of Deputy Master Campbell, handed down on the 5th January 2022. That case grappled with the approach to whether and to what extent such a brief fee should be recovered:

19. Where a case settles after the brief has been delivered, it is no longer the case that counsel is entitled to a full fee.  There will need to be a re-negotiation between counsel’s clerk and instructing solicitors.  Useful binding guidance can be found in the judgment of Jack J in Miller v Hales [2007] EWHC 1717 (QB) at [7].

“The old, the very old, rule was that when a brief was delivered the full fee was payable whatever happened thereafter. Many years ago it became common for agreement to be reached between solicitor and counsel’s clerk in large cases as to the dates at which proportion of the brief fee would become payable in advance of the trial. There are two elements to be reflected there: the work counsel will put in on the brief as the trial approaches – which I would regard as the main element, and the fact that counsel has been booked for the trial and so will have a gap in his diary if the case settles, which may be difficult to fill at short notice. I would not expect today that, where no particular terms had been agreed, counsel would require to be paid his full brief fee where the brief had been delivered well in advance of the trial and the case settled soon after delivery. In short it is today appropriate to take a realistic and practical approach rather than to apply rigidly the old rule that a brief fee becomes payable on delivery of the brief”.


22. So far as the actual calculation of the brief fee is concerned, in Loveday v Renton [1991] Costs LR (Core) 204, Hobhouse J said this

“In assessing a brief fee it is always relevant to take into account what work that fee, together with the refreshers, has to cover.  The brief fee covers all the work done by way of preparation for representation at the trial and attendance on the first day of the trial …  In the present case I consider that the brief fee should be assessed and allowed having regard to the full history of the trial as now known.  It thus should take into account the need for counsel to have meetings with each other and with experts out of court hours and to prepare final submissions.  But it should also take account of the fact that all heavy trials include such a need to a greater or lesser extent.  The preparation by counsel of his examinations-in-chief and cross-examinations and of his final submissions are an ordinary part of his conduct of a trial on behalf of his client.  It is all part of the work which he accepts an obligation to perform by accepting the brief and for which he is remunerated by the brief fee and the agreed refreshers”.

In that case, the judge reduced a brief fee of £125,000 down to a recoverable fee of £27,500 by determining it was too high to begin with and reduced to £75,000, an abatement of 50% was applied, and then work taken in mitigation reduced the sum further by £10,000.

Returning to mesothelioma claims, in particular, a recent decision of a Deputy Costs Judge, that of Coram v DR Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) refusing to award any abated brief fee for leading counsel, and a reduced sum for junior counsel went on appeal to the High Court, Coram v DR Dunthorn & Son Limited [2024] EWHC 672 (KB) where Mrs Justice Yip (sitting with an assessor) upheld the deputy.

53. The judgment must be read as a whole, rather than by selecting individual parts and analysing them out of context. At paragraphs 44 and 45 of the judgment, the costs judge drew a distinction between uncontroversial decisions and those likely to be contentious. He referred to the instruction of leading counsel resulting in a significantadditional financial liability being placed upon the client “in the first instance”. At paragraph 48, he suggested it ought to have been simple for the solicitor to furnish his own explanation for advising the client to incur a very significant additional liabilityabout a month before the trial was due to commence. As paragraph 56, he said that the days when litigants could employ almost unlimited resources to fight cases and expect to recover them from the losing party had long since gone. At paragraph 57, he said that he remained troubled by the absence of a first-hand explanation as to “why advice was given to the Claimant which had such a significant financial impact so close to trial.”

54. I do not consider that the judgment read as a whole demonstrates a misunderstanding of the reality of the likely financial impact of instructing leading counsel. It is right that any such liability was very unlikely in practice to fall on the Appellant personally but that was not the concern identified by the costs judge. The point was that the instruction of leading counsel in this case and at the stage it occurred was always likely to be seen as contentious since it would drastically increase the claim for costs. The costs judge was entitled to think that it was surprising that the thought process behind something with such a financial impact was not better evidenced. It is clear that the costs judge’s analysis was directed towards the reasonableness and proportionality of instructing leading counsel rather than being based on any misunderstanding of where the true liability was likely to rest.

55. Standing back and looking at the judgment below as a whole, it is clear that the costs judge correctly identified the legal principles he had to apply. He carefully analysed the competing submissions and weighed all relevant circumstances. He recognised the need to consider whether the cost of instructing leading counsel was reasonable and proportionate in all the circumstances and that any doubt should be resolved in favour of the paying party. I have not identified any material flaw in his reasoning. This was a careful and balanced judgment in which the costs judge arrived at a decision that was reasonably open to him.

The judgments of both the first instance decision and the appeal, repay careful reading for anyone seeking to recover abated brief fees in any case, or to argue that no such fee should be recovered, or it should be reduced. They also illustrate how difficult it is for well formulated decisions made in costs cases to be unpicked on appeal.



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