Colin Campbell reviews the final report into Guideline Hourly Rates
The Final Report of the Guideline Hourly Rates Working Group of the Civil Justice Council was made public by the Government on 31 July 2021. Its contents will now be considered by the Head of Civil Justice (the Master of the Rolls- Vos MR) and by the full Committee, and a decision taken about which, if any, of the recommendations will be implemented.
The Terms of Reference were slightly (but significantly) amended and now read:
“To conduct an evidence-based review of the basis and amount of the guideline hourly rates (GHR) and to make recommendations accordingly to the Head of Civil Justice and to the Civil Justice Council during Trinity term 2021.”
The Report runs to 115 pages and takes into account all submissions made during the consultancy period which closed on 31 March 2021 following the publication of the Interim Report two months earlier.
For practitioners, the points of principal interest are the recommended increases in the GHR over and above the rates which have prevailed since the last Report in 2010, and the re-banding of certain geographical areas, which will involve, in addition, the abolition of National Band 3.
The result is the following, with the increase on the 2010 rates in parenthesis.
| Grade A | Grade B | Grade C | Grade D | |
| London 1 | £512 (25.2%) | £348 (17.6%) | £270 (19.5%) | £186 (34.8%) |
| London 2 | £373 (17.8%) | £289 (19.5%) | £244 (25%) | £139 (10.4%) |
| London 3 | £282 (13.7%) | £232 (15.8%) | £185 (11.9%) | £129 (7%) |
| National 1 | £261 (20.2%) | £218 (13.5%) | £178 (10.7%) | £126 (6.8%) |
| National 2 | £255 (26.78%) | £218 (23.2%) | £177 (21.3%) | £126 (13.5%) |
The effect of the geographical recommendations mean that Kent, Sussex and Surrey become Band 1 counties, leaving Medway, Maidstone, Canterbury, Lewes and Guildford as the only identified centres in those counties and each is categorised as Band 1. Existing Band 1 counties and other identified Band 1 centres will remain in Band 1, save that Kingston-upon-Thames will move from Band 1 to London 3. All other areas will be/remain in Band 2.
London is subject to special consideration. The recommendation is a re-definition as covering “very heavy commercial and corporate work by centrally based London firms.” It appears, therefore, that if work falling into such a category is undertaken by a central London firm, London 1 rates will apply even though the practice is not geographically based in the City and will no longer be restricted to a particular postcode.
Other recommendations (not being an exhaustive list) are of a less fundamental nature and can be seen more in the context of tidying up loose ends. They include :-
- The express inclusion as grade A fee earners of Fellows of CILEX with 8 years’ post-qualification experience .
- The replacement of the words ‘legal executives’ with ‘Fellows of CILEX’ in the categories of fee earners at Grades B and C.
- Under the heading: ‘Grades of fee earner’ : the entitlement of employed barristers to be properly remunerated at the Grade which best reflects their litigation experience, either as Grade A or B.
- That the Civil Procedure Rule Committee should consider whether form N260 should (a) Require the receiving party to specify the location – i.e. the office to which a fee earner is, or is predominantly, attached – of the fee earner(s) for whose work claims are being made and (b) replacing in the ‘Description of fee earners’ section of the form, the word ‘(grade)’ with ‘(GHR grade)’.
- That the £19 per for litigants in person should be reviewed : it has not changed since 31 March 2015.
- That if the proposed GHRs are introduced they should applicable to all summary assessments from the date of their introduction.
Other points :
(1) The recommendations fall short of stating that the GHR provides a base figure when the court is considering what rate should be allowed at detailed assessment, although for years that has not been a controversial issue. Instead the Report states that :-
“ … that GHRs are a helpful starting point in detailed assessments” [see paragraph 3.62 viii]……. GHRs are used, and should be used, in a broad range of cases. Of course, they are a guide, and a starting point. Judicial discretion and the (now) eight pillars of wisdom [see CPR 44.4(3) (a)-9d)] are relevant in both summary and detailed assessment. A judge may be persuaded that a case is so straightforward that a lower rate should apply; or a judge may be persuaded that a case warrants a rate somewhat higher than the GHRs; or in some cases rely on paragraph 29 of the Revised Guide [Senior Courts Office Guide] . GHRs are not, and cannot be, prescriptive to judges”.
(2) The existing practice that complex cases where a fee earner bears a particularly heavy responsibility, will continue to command an uplift on the GHR, at the discretion of the judge who assesses the bill.
(3) Although it is recommended that the LIP rate be reviewed, there is no similar view expressed that this should also happen for the cap of £1,500 plus VAT and the court fee in respect of the costs which can be allowed for provisional assessment under CPR 47.15.
(4) The covid-19 pandemic. “Working from home” has become the norm for many practitioners in order to comply with various “lock down” directives given by the Government. Whether remote working in this way should be reflected in an adjustment to the GHR on the basis that office overheads would be reduced as a consequence, was not an issue with which the Committee was willing to grapple. It may be willing to do so in the future, however, possibly by a form of certification about the place in which the work was actually carried out if this was not the office for example if the fee earner worked in central London but lived in a Band 1 area.
(5) More regular Reviews : Every three years rather than every decade is the suggestion!
On a practical note (and not part of the Report), it is improbable that any backdating of the GHR will be permitted if the recommendations are accepted. That will forestall what happened when Court of Protection rates were uplifted by 25% (see Re PLK [2020 Costs LR 1349]), which resulted in multiple applications to withdraw bills that had already been lodged for assessment, so that the higher rates could be claimed. The likelihood is that the GHR, as revised, will only become the norm from the date upon which Vos MR approves them, if, indeed, he does so.
Colin Campbell – Editor of the Costs Law Reports
11.08.21