Use of expert counsel in complex case did not mean solicitors’ skills were not needed

A costs judge has branded as “remarkable” the suggestion that the hourly rates of a law firm’s involvement in a highly complex case should be downgraded because it instructed expert counsel.

Master Rowley (pictured) said “there is no warrant in my view for there to be a reduction in the hourly rates claimed simply on the basis that counsel was also involved in dealing with matters”.

He was ruling in the case of R v Barts Health NHS Trust [2022] EWHC B3 (Costs), which dealt with the costs of a high-profile 2019 application for judicial review of the decision by the defendant trust to refuse to permit five-year-old Tafida Raqeeb to travel to Italy for continued life-sustaining treatment, and an application by the trust under the Children Act 1989 for declarations that it was in her best interests for her life-sustaining treatment to be withdrawn, a course of action that would have led to her death.

The High Court found that the trust’s decision was unlawful but declined to grant relief to Tafida on her application for judicial review, and dismissed the trust’s application under the Children Act. Mr Justice MacDonald ordered the trust to pay the claimant 80% of her costs for the judicial review and made no order as to costs in relation to the Children Act proceedings; most of the claimant’s costs were claimed for the judicial review.

One of a series of preliminary points Master Rowley dealt with ahead of the detailed assessment was on hourly rates and that the “baton of responsibility and importance to the claimant” had been passed to leading and junior counsel; the defendant argued that the solicitors relied heavily upon counsel’s specialised knowledge and skill to take the case forwards.

As such, the defendant contended that the claimant’s solicitors did not “have to exercise any more skill, effort and specialised knowledge than that of an un-specialised solicitor”.

The Manchester office of Irwin Mitchell dealt with the case, which concerned a London hospital, so there was no question that it was unreasonable to instruct the firm.

Master Rowley said that, even though the events of the case all took place during a short period in 2019, “it seems to me there is really no argument that the correct starting point” should be the new 2021 guideline hourly rates (GHR). The rates claimed were between 11% and 32% higher; the defendant offered a figure between the old and the new GHR.

The defendant argued that the degree of legal complexity in the judicial review proceedings, though arising from a grave and complex case, was the sort that experienced counsel on both sides would be familiar with and primarily involved points of law which would be identified and then developed and argued by counsel.

Therefore, “the degree of skill, responsibility and expertise reasonably required of the claimant’s solicitors was minimal”.

The defendant was not saying that the higher-grade solicitors at Irwin Mitchell were unskilled; rather, they did not display those skills in this case.

Master Rowley disagreed: “Given the vital nature of these proceedings, it seems to me that the hourly rates claimed are in fact entirely reasonable and that there is little need to go through the seven pillars of wisdom (ignoring the budgeting aspect) in CPR 44.4(3) in any detail.

“In particular, it is hard to imagine any case involving more importance to the client or, given the need for urgent action, one which would score more heavily on the circumstances in which the work was done.”

Master Rowley observed that the choice of expert counsel might in itself have been “a reflection of expert solicitors”.

He added: “But leaving that to one side, it is, in my view, a remarkable suggestion that a case whose own weight clearly justified using expertise to pursue it, can be downgraded in the choice of an appropriate solicitor by that solicitor’s choice of external assistance.”

He said a review of the papers made it clear that “expertise was evident in the solicitors’ dealings with counsel”.

“The papers reminded me of files seen where commercial law firms and leading and junior counsel are acting quickly in relation to injunctive proceedings with rapid return dates et cetera. There is very much a team effort between solicitors and counsel in terms of communication with other parties, the drafting of documentation, the strategy and so on.”

The issue on assessment, the judge said, would be whether there was too much involvement of counsel, as the defendant contended.

Vikram Sachdeva QC (instructed by Irwin Mitchell) for the claimant and Roger Mallalieu QC (instructed by Keoghs) for the defendant.

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Costs News
Published date
27 Jan 2022

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