Kerry Underwood


with 2 comments

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In Hugh Cartwright & Amin v Devoy-Williams and another [2018] EWHC 1692 (QB) (4 July 2018) (Davies J)

the High Court has ruled that a Master had wrongly reduced counsel’s brief fee, on a challenge to a detailed costs assessment, whereby the case settled the day before the trial was due to start.

The brief fee claimed was £6,500, which Master Rowley considered reasonable for preparation and trial, but he allowed only £3,000 as the mediation time claimed by the solicitor indicated that the case had settled in the afternoon of the day before trial, but counsel had not been notified until 10.30 pm.

He held that had the brief been cancelled in the afternoon, some preparation could have been avoided and counsel could have done something else the next day.

The High Court held that there were no good grounds to reduce the fee.

In the context of this “high temperature” litigation, with allegations of fraud, misrepresentation and deceit, a case was not settled until it was finally settled and mediation had not ended until 10.30 pm.

No counsel properly observing their duty would stop work on the case until final settlement had been confirmed.

All the preparation work had been done.

Whether counsel could find something else to do was irrelevant to the brief fee, which was payable on a brief properly delivered.

The decision highlights the default position regarding the receiving party’s entitlement to the costs of detailed assessment proceedings under CPR 47.20(1).

The paying party had made a Calderbank offer in respect of the receiving party’s costs, which incorporated various conditions relating to a second action between the parties.

Master Rowley had accepted that the receiving party was incapable of accepting the offer because its insurers had conduct of the second action, but determined that the receiving party could have accepted quantum and either varied the conditions, or sought a hearing to determine set-off.

The High Court disagreed, ruling that a valid Calderbank offer had to be acceptable on its stated terms and should not be one which contemplated further negotiation.

The Master had incorrectly placed the burden on the receiving party to negotiate on the conditions or make a counter-offer.

That reflected neither the wording of the rules nor the nature of Calderbank offers.

Written by kerryunderwood

July 30, 2018 at 8:29 am

Posted in Uncategorized

2 Responses

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  1. The High Court appears to have overlooked the fact that a brief fee also covers the first full day in Court and so an abatement of the original fee was in my view fully justified; (perhaps not as much as £3,500.00 but a reduction of at least £1,500.00 would have been appropriate).

    Jim Knight

    July 30, 2018 at 9:14 am

    • Interesting to know whether the barrister involved managed to do other paid work on the day of the aborted trial……………..



      August 10, 2018 at 6:14 pm

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