Costs Management!
An issue which arises infrequently, but which often causes difficulty in the context of costs management is the retainer of Leading Counsel. The expense thereof throughout the duration of a claim is always significant, and the position becomes more problematic where both Leading and Junior Counsel are envisaged.
In such circumstances, unless in the most exceptional of cases, it is virtually impossible to persuade a Defendant that tranches of estimated costs are reasonable and proportionate, when considering the amounts of Counsel’s fees. Nearly always, the Court is required to adjudicate, which is mostly always a gamble.
The considerations are whether it is reasonable in the circumstance of the claim to instruct Leading and Junior Counsel, and whether the estimated costs are reasonable and proportionate.
The most relevant authorities are:
R v Dudley Magistrates Court, ex p Power City Stores Ltd (1990) 154 JP 654
Juby and others v London Fire and Civil Defence Authority (unreported), 24th April 1990, QBD
The considerations per Juby are –
- The nature of the case
- Its importance to the client
- The amount of damages likely to be recovered
- The general importance of the case, for example as affecting other cases
- Any particular requirements of the case, for example the need for legal advice or specialist expertise., such as examining witnesses
- Other reasons why and experienced or senior advocate may be required
The argument about both Leading and Junior Counsel is challenging enough but made more difficult with a poorly drafted Budget.
My point, and that of the Courts is that Leading and Junior Counsel have different roles in the proceedings, and a Costs Budget must make that abundantly clear, and the fees of both will be based on their respective defined functions in the claim.
Informing the Court as to exactly what Leading and Junior Counsel will and will not do, and why, and distinguishing their respective various individual estimated fees is essential to demonstrating the overall reasonableness of the choice to retain them in the first place and goes a very long way to providing the Budget with overall integrity.
If on the other hand, as I often see, that Leading and Junior Counsel’s fees are simply “lumped” into a Budget then you are unlikely to achieve the best outcome at Court, and afterwards you will need to review how you are going to spend limited costs throughout the Claimants legal team, or in the alternative jettison either leading or Junior Counsel.
Where both Leading and Junior Counsel are being maintained, then it is crucial to have an itinerary of their respective functions in the proceedings with explanations of anticipated work and precisely estimates fees.
How can PIC help?
PIC work collaboratively with all members of a legal team to facilitate the most robust Budget possible.
Mark Balme, Senior Costs Consultant
08.08.2024