The current review of the guideline hourly rates might be only the prelude to a “more fundamental” look at how the changing working practices of the legal profession should be reflected, the Senior Costs Judge told last week’s ACL’s virtual conference.
Andrew Gordon-Saker (pictured), who is vice-chair of the Civil Justice Council working group headed by Mr Justice Stewart, also told around 150 delegates that its preliminary report should hopefully be published before Christmas.
There will then be a period of consultation and the final report should be presented to the council and the Master of the Rolls next summer.
He said the group was not looking to base its recommendations on an ‘expense of time’ calculation like Mr Justice Foskett did in the last review, because “there is no reason to think solicitors will be more forthcoming than they were in 2014”. Ultimately, the lack of evidence provided by the profession led the then Master of the Rolls, Lord Dyson, to decide he could not change the 2010 rates.
Master Gordon-Saker defended the working group’s approach of instead looking at what the courts award, saying that what solicitors claimed by way of costs was not a “reliable” measure. Though this has been criticised as a circular approach – meaning what the current rates “plus a bit” would be recommended – he said: “I’m not sure there’s anything wrong with that.”
“The key is the sort of rates that are generally allowed by the court,” he said – not what solicitors charged, or what it cost them do the work or the market rate.
The judge said the rates would remain based on geography rather than practice area and the working party would not be reviewing the banding.
“We’re conscious of the fact that working practices have changed in the last year… and, in due course, somebody will have to carry out a rather more fundamental review of how the legal profession is working, perhaps in two or three years’ time, to arrive at possibly different rates based on possibly different geographical areas… But we thought that if we started looking at geographical areas now and there’s a more fundamental review in two or three years… then we’d probably be wasting our time now.”
On other issues, Master Gordon-Saker said they may review whether parties needed to file a paper bill alongside an electronic one – “it seems a bit pointless,” he said – and that there was no prospect of the £75,000 provisional assessment limit being raised.
There will be a fuller review of the conference in the next Costs Lawyer magazine.