The Competition Appeal Tribunal (CAT) has rejected the argument of a defendant unsuccessful in pursuing a preliminary issue that the costs of the hearing should be left until the end of the case.
It backed a 2014 decision of Mr Justice Nugee in which he said that there was, in general, “a salutary principle” that those who lose discrete aspects of complex litigation should pay for the discrete applications or hearings which they lose, “and should do so when they lose them rather than leaving the costs to be swept up at trial”.
In UKRS Training Ltd v NSAR Ltd  CAT 24, the CAT said that, had the defendant been successful over the preliminary issue, it would have been the end of the case.
The tribunal also rejected the defendant’s submission that the case should go to detailed assessment. It was a two-day hearing involving no expert evidence and specific disclosure, and the claimant sought £83,710 (including VAT). “In those circumstances, we consider it would be disproportionate to send the matter off for detailed assessment.”
The CAT said that, taken as a whole, the fees were not disproportionate, but found that the time spent working on documents were not reasonably incurred as it was all charged at grade A rates. “Such matters as checking listing, collating exhibits and preparing an index for the bundles should not be charged as fee-earner’s work, and certainly is not reasonable at grade A.
“Further, the time spent reviewing transcripts (2.5 hours for the transcript of the initial procedural hearing, and three hours on 10 October 2016, after the conclusion of the preliminary issue hearing) seems unreasonable. We mention these matters by way of the more striking examples. Since this is a summary assessment, it is not appropriate to conduct a line-by-line examination of the schedule of costs. Therefore, taking a broad brush approach, we reduce the fee for work on documents by 25%, to £22,554.12.”
Otherwise, the tribunal rejected the challenge to most of the solicitors’ work being done by a grade A solicitor. “It must be borne in mind that the claimant’s solicitors are a small, central London firm [Berkeley Square Solicitor] and do not have the range of lawyers typically found at a large, commercial practice.
“While the claimant could, of course, have instructed a larger firm, the hourly rate charged for the partner here (£350) is much less than found at such larger London firms that undertake competition litigation, and is indeed close to the rate now typically charged at such firms for grade B solicitors.
“We do not think that the claimant is to be criticised on this account for retaining the solicitors it instructed, although we take the point into account when looking at the overall level of fees charged for work on the documents.”
A challenge to the hourly rates – which at £350 for grade A and £150 for grade D were £33 and £24 above the guideline rates respectively – also failed. The tribunal noted that the guideline rates were “broad approximations only” and have not been updated since 2010. “We consider that the rates charged are entirely reasonable for work in this specialised area.”
As a result, the CAT summarily assessed the costs at £62,266.