Counsel fees

Employment of counsel:

Smith –v- Buller [1870]Employment of 3 or more counsel – Objection to third counsel – The Judge took into account the complexities, length of evidence, issues to be decided and the fact that the Plaintiff also had three Counsel.

Smith v Earl of EffinghamEmployment of 3 or more counsel – three counsel only in exceptional circumstances i.e. importance of matter, extent of pleadings and evidence, time likely to be occupied in the hearing. Examples of such cases: Pearce v Lindsay; Wentworth v Lloyd.

Challenges to fees generally:

Loveday v Renton and Welcome Foundation (No.2) [1992] 3 All ER 184 Brief fees – This case set the ‘normal rule’ that work done after the delivery of the brief fell to be calculated as part of the brief fee (unless there was a specific agreement to the contrary). After the delivery of the brief, any work done before or after Court is covered by the brief fee (or refresher). This will include all preparation time, conferences with solicitors, experts or others. Unless otherwise agreed, it will include the time engaged after court on refresher days (and possibly after 10 hours of time already engaged on that day). However, it is arguable whether work done after 10 hours on a particular day could reasonably be said to have been taken into account when the brief fee was calculated and agreed. Refresher fees cover the work done in court. However, where the court does not sit, no refresher fee would be payable. On non-sitting days, any preparatory work that Counsel undertakes would be covered by the brief fee.

(1) Cantor Fitzgerald (formerly Cantor Fitzgerald (UK) Ltd) (2) Cantor Fitzgerald Securities -v- (1) Tradition (UK) Ltd (2) Tradition Bond Brokers Ltd (3) Christopher Howard [2003] – Brief fees – tranches – Conduct – Issues of conduct should where possible be raised before the trial judge and not left until detailed assessment. Brief fees paid in advance of commencement of trial were to be assessed as falling into the period in which they were paid even though they would generally be treated as costs of the trial. Settlement before a trial commenced and conclusion by settlement after commencement could both occur on the date fixed for trial. The trigger for entitlement to a 100% uplift was not settlement on a particular date but settlement or conclusion after a trial.

Leo Roland Higgs (a child suing by his mother and Litigation Friend, Marcia Higgs –v- Camden & Islington Health Authority [2003] EWHC 15 (QB) 16.01.2003 (appeal from Costs Judge Rogers)Hourly rate – This was regarded as an increasingly complex clinical negligence matter. A ‘very eminent’ Leader’s hourly rate was £350.00. The court found: “There is no tariff for hourly rates for Counsel”. Those practicing in commercial court can command higher rates than those practising in the common law or criminal courts. The facts of the case required a top silk and so the hourly rate was allowed.

XYZ v Schering Health Care: Oral Contraceptive Litigation – 31.03.04 (Mr Justice Cooke sitting with assessors) – The Supreme Court Costs Office No. 9 of 2004
The ‘normal rule’ was further upheld in this complex group action. Leading Counsel’s rate was £350. At first instance the court found that, although complex litigation, such an eminent Leader was not required. A less eminent Leader would have taken the brief for less i.e. £300 ph. Therefore, the £250,000 brief fee was reduced to £195,500. On appeal, the Judge found that although the time spent was a relevant factor, it was not appropriate to determine a brief fee by having regard to an hourly rate. The Brief was allowed at £250k as claimed.

Lord Chancellor v Nicholas Haggan QC & Others (2007) – Graduated Fees – This case concerned the amount due to a barrister in graduated fees. The governing regulations were amended to correct drafting errors and to reflect the true intention of the draftsman.