The continued existence of guideline hourly rates (GHR) set in 2010 is becoming “intolerable” for both claimant and defendant representatives, well-known costs counsel Robin Dunne has said.
He suggested that, if they remain unchanged, “solicitors will have to end up preparing expense of time calculations for assessments because judges have to start somewhere”.
In a podcast on costs trends produced by London chambers Hardwicke, PJ Kirby QC spoke about appearing before an employment tribunal recently where the judge said he was a great fan of the GHR. He said this suggested the judge had not seen Mrs Justice O’Farrell’s ruling in Ohpen, in which she said the current levels were “not helpful” when deciding what reasonable rates should be in 2019, and that solicitors providing appropriate skill and expertise “are entitled to charge the market hourly rate for their area of practice”.
Mr Kirby described Ohpen as “a good decision to carry around with you if you are the receiving party” and predicted there would be “further consideration and criticism” of the GHR in the coming year.
Mr Dunne said the “trouble” with the concept of market rates was whether the judge has knowledge of them and whether they would be challenged.
Ultimately, he said the GHR would only be sorted out by the solicitors’ profession “as a whole” providing evidence on the cost of litigation – which it failed to do when the GHR were last reviewed in 2014/5 – or “individual firms coming to the court armed with the figures which justify the cost doing the work and how much the cost has gone up since 2010”.
A survey at last November’s Manchester conference found that 60% of ACL members though a review of the GHR was urgent, agreeing that they are doing more harm than good. A further 26% said it would be “helpful”.
Also speaking at the Manchester conference, SCCO Master Jennifer James said the ruling of O’Farrell J has “created a mood and perhaps an impetus for change that might not have been there before”.