Kerry Underwood

COUNSEL’S FEES IN FIXED RECOVERABLE COSTS CASES

with 13 comments


Look here for Kerry’s new course on this subject. 

COUNSEL’S FEES IN FIXED RECOVERABLE COSTS CASES

Counsel’s fees as such are not recoverable in Fixed Recoverable Costs cases – it is assumed that the solicitor will deal with all matters in such cases. You are free to instruct counsel but you do not get a separate fee as it is part of the legal spend. If it were otherwise you could take the fixed costs and get counsel to do everything and charge all of counsel’s fees as a disbursement.
Advocacy fees, for trial, are recoverable as per the Tables and the fee is the same whoever the advocate is, barrister or solicitor, and irrespective of seniority or expertise.

No advocacy fee is recoverable if the matter settles before trial. Clearly the solicitor gets the benefit of a higher fee the further the matter progresses through the Fixed Costs Matrix. Counsel does not.

The CPR specifically deal with other work by counsel.

CPR 45.23B reads:-

“Where—

  • the value of the claim for damages is more than £10,000;
  • an additional advice has been obtained from a specialist solicitor or from counsel;
  • that advice is reasonably required to value the claim,

the fixed costs may include an additional amount equivalent to the Stage 3 Type C fixed costs.”

Type C fixed costs are £150.00 plus VAT.

It is unclear as to whether you can instruct a specialist solicitor in your own firm and get the extra fee.

CPR 45.29I reads:-

“(1)        Subject to paragraphs (2A) to (2E), the court—

  • may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but
  • will not allow a claim for any other type of disbursement.

(2)          In a claim started under either the RTA Protocol or the EL/PL Protocol, the disbursements referred to in paragraph (1) are—

  • the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;”

The EL/PL protocol makes clear that advice from counsel MAY be justified where reasonably required to value the claim:

“7.8.       In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000, an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

CPR 45.29I (1) (h) allows the recovery of “any other disbursement reasonably incurred due to a particular feature of the dispute.”

I know that some courts have allowed counsel’s fees in those circumstances. My view is that that is wrong given that this same rule specifically sets out the circumstances in which counsel’s fees may be claimed, but I appreciate that there is another view in relation to that.

CPR 45.29H (1) deals with interim applications and reads:-

“(1) Where the court makes an order for costs of an interim application to be paid by one party in a case to which this Section applies, the order shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A.”

CPR 45.29H (3) reads:-

“(3) If an order for costs is made pursuant to this rule, the party in whose favour the order is made is entitled to disbursements in accordance with rule 45.29I.”

Thus even if a costs order is made, one is thrown back on the CPR 45.29I definition.

It would be rare on a Case Management Conference for the court to order one party to pay the costs, absent particularly bad conduct by the paying party.

The relevant Type A & B costs are £250.00 and therefore a sum equivalent to one half of those costs is £125.00.

My starting point is that you receive nothing as this is just part of running the case.

Please look at my blog: INTERIM APPLICATIONS, ADVOCACY FEES, 12.5% UPLIFT: MORE FIXED COSTS ISSUES which deals with all of these matters in rather more detail.

I will discussing all of this, and much more, in my spring tour on the Fixed Recoverable Costs and the Portals dates. The link to those courses is here.

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Written by kerryunderwood

November 12, 2015 at 9:56 am

Posted in Uncategorized

13 Responses

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  1. Dear Kerry

    Thank you for your note.

    An area that particularly concerns me (as counsel) is when the court vacate the hearing the day before the trial date due to lack of court time (an increasingly frequent problem), counsel is left high and dry. Such adjourned hearing is difficult to recover as defendants argue that the rules allow for only one advocacy fee at the final hearing …

    James Osborne

    November 12, 2015 at 11:09 am

    • James

      Many thanks. I think that the defendants are correct. This is an inherent problem with a failing court system – it is not fair that either party should suffer – you by losing a fee or the defendant by paying a double fee due to the problems of the court. This is even more graphic now that court fees are so high for such a poor service. There is no easy answer. We always seek compensation from the Ministry of Justice, but with varying degrees of success.

      Kerry

      kerryunderwood

      November 12, 2015 at 1:33 pm

  2. Kerry,
    A well-timed article for me – thank you. Could I ask for your thoughts on the instruction of Counsel to advise on quantum in minor cases please? As a costs representative acting for paying parties, I am seeing more and more firms of solicitors using “in-house” counsel on these cases and claiming these as a disbursement. I cannot see that a paying party would have much luck in objecting if the “in-house” counsel is, in fact, a practising barrister. What is your view? Also, would a paying party be entitled to object if rather than counsel the firm used an “in house” solicitor advocate?
    Thanks,
    Sue

    metcalfeperry@hotmail.co.uk

    November 13, 2015 at 11:21 am

    • Sue

      CPR 45.21(2) provides that where the court approves a settlement at a Settlement Hearing the Defendant shall pay Type C costs (£150.00 plus VAT) as well as other costs and disbursements. A Settlement Hearing is essential in all cases involving children, whatever the value and whatever the procedure.

      The Portal Scheme and the Fixed Recoverable Costs Scheme once the matter has been issued both allow for an additional fee in relation to a matter involving a child but there appears to be no provision for such an additional fee if the matter is settled after exiting the Portal but before proceedings are issued and I have certainly had a number of solicitors making this point.

      There appears to be nothing to stop a claimant issuing proceedings while the matter is still in one of the Portals, provided that the appropriate time has expired since lodging the Claim Notification Form, which stands as the Letter of Claim.

      That avoids the lacuna whereby no additional fee appears to be payable in a child case where the matter has exited the Portal but has not yet been issued.

      As far as I am aware no distinction is drawn at any stage between a solicitor and a barrister and the additional fee is for the Settlement Hearing rather than advising on quantum. I appreciate that appearing as an advocate at the Settlement Hearing, or making written submissions, involves an assessment of quantum but that is a separate issue from the additional fee for advising on quantum, which applies whether or not it is a case involving a child.

      I will return to that.

      These are the figures for a claim settling for say £1,001.00:-

      EXAMPLE

      If a child’s claim settled for damages £1,000.00 the following costs would be applicable at each stage:-

      – Settles within the portal

      CPR 45.22 applies to cases where settlement at Stage 3 where the claimant is a child:-

      Stage 1 fee – £ 200.00

      Stage 2 fee – £ 300.00

      Stage 3 fee –

      o Type A costs £ 250.00 Type A fixed costs’ means the legal representative’s
      costs

      o Type B costs £ 250.00 Type B fixed costs’ means the advocate’s costs

      o Type C costs £ 150.00 Type C fixed costs’ means the costs for the advice on
      the amount of damages where the claimant is a child

      TOTAL £1,150.00

      – Settles outside the Portal but pre-issue

      CPR 45.29C Table B deals with the amount of Fixed costs in claims that no longer continue in the portal

      “TABLE 6B

      Fixed costs where a claim no longer continues under the RTA Protocol
      A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7

      Agreed damages At least £1,000, but not more than £5,000
      Fixed costs The greater of—
      (a) £550; or
      (b) the total of—
      (i) £100; and
      (ii) 20% of the damages”

      TOTAL £ 550.00

      – Settles post issue

      CPR 45.29C Table B deals with the amount of Fixed costs in claims that no longer continue in the portal

      “TABLE 6B

      B. If proceedings are issued under Part 7, but the case settles before trial

      Stage at which case is settled On or after the date of issue, but prior to the date of allocation under Part 26
      Fixed costs The total of—
      (a) £1,160; and
      (b) 20% of the damages”

      Thus this will be:-
      £1,160.00
      £ 200.00

      TOTAL £1,360.00

      I now return to the issue of advice on quantum.

      RTA Portal paragraph 7.10 reads: –

      “In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000 (excluding vehicle related damages), an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

      EL/PL 7.8 is in similar terms.

      That this applies only to an advice on quantum is confirmed by RTA 7.47(4) and EL/PL 7.44 (4) which read: –

      “…where an additional advice on quantum of damages is justified under paragraph 7.10 [7.8 in EL/PL], a sum equal to the Type C fixed costs to cover the cost of that advice.”

      Type C costs are £150.00 plus VAT.

      It is unclear as to whether the firm can instruct a specialist solicitor in their own firm and get the extra fee.

      Thus if it is a case involving a child then an additional fee is payable in relation to the Settlement Hearing but no separate fee is payable in relation to an advice on quantum unless RTA 7.10 or EL/PL 7.8 is satisfied and if that is satisfied it applies equally to adults as well as to children.

      It is not a disbursement; it is additional legal costs.

      Thus in relation to advocacy then no, you could not object to the fact that it was a solicitor; the whole of the Portal process, including the matters I have quoted, make it clear that it is the solicitor and not counsel who is expected to deal with the whole of any personal injury claim valued at £25,000.00 or less.

      In relation to the advice on quantum where the matter is over £10,000.00 and justified the law is unclear, but I think that it is worth a paying party objecting if the specialist solicitor is indeed an in-house solicitor at the same firm as the legal representative.

      Kerry

      kerryunderwood

      December 3, 2015 at 9:18 am

  3. […] Kerry Underwood – Counsel’s fees in fixed recoverable costs cases […]

    • I have recently had a Defendant accept a Part 36 on the morning of the trial (at the door of the court) and then argue that Counsel’s trial fee is not recoverable as the case was settled “before trial”. Trial judge did not agree but I was wondering what your thoughts were?

      Angela

      November 24, 2015 at 9:12 pm

      • Angela
        Defendant right – judge wrong in my view. Offer left open is capable of acceptance – how can anyone get paid for work not done? Where do you stop? “Oh, I was going to spend 10 hours on it next week, so I want paying for that even though we have now settled.”

        Kerry

        kerryunderwood

        November 27, 2015 at 5:12 pm

  4. If a claim exits the portal say for example if liability is denied, are you still able to claim counsel’s fee for an advice on liability?

    Tracy T

    February 17, 2016 at 2:29 pm

    • No. In very limited circumstances you can claim £150 for an advice on quantum, but never on liability. This is the proposed model for claims up to £250,000. In reality counsel’s fee is considered part of the legal spend, so you are free to instruct counsel but not to recover that as a separate fee. You can see the logic of that – otherwise you could keep the fixed fee and instruct counsel on everything.

      Kerry

      kerryunderwood

      February 17, 2016 at 2:42 pm

  5. Dear Kerry

    You say some courts have awarded counsel’s fees for work other than quantum advice under the general power in CPR 45.29I (1) (h). Do you know of any particular cases that we can cite?

    Thanks

    Dan H

    Daniel Harley

    May 25, 2016 at 1:56 pm

    • Dan

      No, I am afraid I don’t, but I have heard it sufficiently often from solicitors that, anecdotally, I am satisfied that it is happening. As far as I am aware, and I think that I would be, there is no authority on the point even at Circuit Judge level, let alone the High Court/Court of Appeal. For what it is worth my view is that it is wrong in principle as the rules make specific provision for when counsel’s fee can be claimed and that would be a pointless rule if the courts were free to treat counsel’s fee as a disbursement whenever they want.

      Kerry

      Kerry

      kerryunderwood

      May 27, 2016 at 5:01 pm

  6. I have been quoted £720 by counsel for a half hour assessment of damages hearing where we have a default judgment. When I queried the fee the clerk said ‘ you do realise, the rate is set by the Court and not by us, don’t you ?’ It’s an MOJ FRC matter. I declined and will do it myself but is the advocacy rate for the above hearting the same as a trial ? If so and I do it I assume I can charge the FRC table rate for my attendance ?

    dominicmoss

    July 15, 2016 at 10:28 am

    • Dominic

      Yes, but £710 not £720. That is Fixed Recoverable Advocacy fee for £3,000 to £10,000 case. Counsel’s clerk is right – but in my opinion so are you in doing it yourself. Advocacy costs in fixed costs cases are decent.

      Kerry

      kerryunderwood

      July 15, 2016 at 12:33 pm


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