Assessment of Costs in the Supreme Court

It is always a pleasure to attend the Supreme Court for the purposes of a detailed assessment. Visitors to its building on Parliament Square find a pleasing venue far removed from the squalor of the county courts or the remote eyries of the upper floors of the Thomas More building with its inadequate lifts.

Costs assessments are undertaken by the Costs Officers of the Supreme Court: usually the Senior Costs Judge or his nominee, and the Registrar of the Supreme Court. Hearings take place in the chamber. The principal provisions which govern such assessments are to be found in Practice Direction 13 of the Supreme Court.

Solicitors fees are assessed on the familiar basis, which would apply in any other detailed assessment as follows:

15.1 The Court adopts the guideline rates issued by the Senior Courts Costs Office for summary assessment and the rates are the starting point for all assessments. These are consolidated figures that include a mark-up for care and attention. Form 5 must be completed using a consolidated figure for the hourly rate. If a rate is charged that exceeds the guideline rate an explanation must be given under the heading ‘Fee earners and hourly rates’ in part 1 of Form 5.

15.2 The following table sets out the current hourly rates and localities:

Grade of fee earner A B C D
London 1 £409 £296 £226 £138
London 1 £409 £296 £226 £138
London 2 £317 £242 £196 £126
London 3 £229 to £267 £172 to £229 £165 £121
National 1 £217 £192 £161 £118
National 2/3 £201 £177 £146 £111

An explanation of the grades and details of localities is set out in Section 3 below. If the rates set by the Senior Courts Costs Office have been amended the Supreme Court will allow the amended rates in lieu of those in this table.

15.3 Where solicitors have charge of producing large documents such as the authorities or core volumes, it will not usually be appropriate for a higher grade rate to be applied. Time spent photocopying is not recoverable (although the cost of photocopying is). See also paragraph 11.3 above for documents.

15.4 Travel and waiting are allowed at the rate agreed with the client, unless this is more than the hourly rate allowed on assessment.

15.5 Letters and telephone calls are allowed at one tenth of the hourly rate.

Solicitors costs rarely prove problematic: indeed it is common to reach agreement on them. What often proves to be harder to gauge are counsel’s fees: and often these are the largest element of the Bill, as by the time the case reaches the Supreme Court, on a point of law, counsel’s input will be greatest.

Practice Direction 13 has this sage advice when it comes to the assessment of counsel’s fees both at the permission stage and the substantive appeal:

15.6 The following guideline figures are used in assessing payments to counsel at the application for permission to appeal stage:

Applications for permission to appeal Junior QC
Settling application £1250 £1750
Advice for legal aid provider £500 £800
Preparing respondents’ objections £800 £1100
One conference £250 £500
Attending oral hearing by Appeal Panel £1600 £2100
 15.7 A claim for an increase on any of the above items or claim for any other item must be explained in a detailed note from counsel.

15.8 The general rule is that only one counsel’s fees is allowed on assessment for any stage of an application for permission to appeal, unless a public funding or legal aid certificate authorises two counsel (but see paragraphs 6.6 and 6.7).

15.9 The following guideline figures are used in assessing payments to counsel at the appeal stage:

Appeals Junior QC
Notice of appeal (where UKSC has granted permission) £150 £150
Notice of appeal (where permission is not required) £1250 £1750
Statement of facts and issues £2250 £4500
Authorities £900 £1800
Conferences (each, up to a maximum of six) £600 £1200
Advice £1000 £2000
Brief (based on a 1 day hearing) £7500 £15000
Brief (based on a 2 day hearing) £10000 £20000
Refresher (from day two of the hearing) £1625 £3250
 15.10 Counsel’s fees are assessed in respect of each item of work counsel has undertaken. It is essential that this approach is reflected by those completing Form 5. It should be borne in mind that the number of hours spend by counsel in preparation is rarely of assistance to the Costs Officers when assessing the amount of counsel’s fees at any stage of the proceedings.

15.11 Counsel for an appellant generally commands a higher fee than counsel for a respondent.

15.12 The brief fee includes all work on the brief, the written case, counsel-only conferences and the first day of attendance at the Court.

15.13 The Costs Officers exercise discretion in instances where junior counsel has undertaken most of the work on a particular item.

15.14 For settling a notice of appeal where the Supreme Court has granted permission, only one counsel’s fee is permitted.

15.15 The Costs Officers have no discretion to allow the fees of more than two counsel unless the Court has ordered otherwise.

These fees are intended as a guide. If counsel seek higher fees, they must provide an explanation in a detailed note.

This guidance has been honoured more in the breach than in the observance.

The guideline figures are mysterious in their origin: they do not seem to have been the subject of consultation. They certainly cannot be justified on the basis of a survey of the “market rate” for a silk to undertake work in the highest court in the land. And in my experience they are routinely ignored.

The approach of the Costs Officers has been hitherto, to assess counsel’s fees in accordance with the principles established in the key cases which govern the calculation of counsel’s fees.

Thus consideration of the formulation for assessing counsel’s fees by Pennycuick J in the case of Simpsons Motor Sales (London) Limited.v.Hendon Borough Council [1965] 1 WLR 112 remains relevant:it can be useful to estimate what a hypothetical counsel capable of conducting the particular case effectively would be content to take on the brief.

One should also note  Perry.v.The Lord Chancellor (The Times 26th May 1994),  where the court emphasised that one of the roles of junior counsel justifying his fee can be to carry out legal or other research. When seeking to challenge a brief fee, noting that the generally helpful statement of principle set out in the case of  Loveday.v.Renton (Number 2) [1992] 3 All ER 184 as to the work the “brief fee” encompasses requires substantial moderation both due to the existence of the Practice Direction and the peculiar nature of appeals in the Supreme Court.

Practically the Costs  Officers base themselves heavily on the number of hours done by counsel, the fees paid to the opposing counsel and a notional hourly rate, starting at £350 per hour but moving sharply upwards, depending on the nature of the appeal under consideration.

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