Harshly Graded?
The below case sets out the likely approach a court will take when assessing recoverable hourly rates in such cases, including consideration of the appropriate grade of fee earner.
TRX v Southampton Football Club Ltd [2022] EWHC B7 (Costs)
T had brought a claim for personal injury, arising from alleged sexual abuse for which he asserted S was vicariously liable. T instructed a specialist London firm, Bolt Burdon Kemp, and this was one of 26 similar individual claims. Proceedings were issued and S served a robust Defence before settlement was finally agreed in the sum of £4,000.
The judgment sets out the decision of Master Brown in the SCCO on the issue of recoverable hourly rates, in the context of the detailed assessment of T’s costs, which were claimed at almost £66,000. The matter was heard on 2 March 2021, but the transcript has only recently been made available.
The Master considered the factors set out in CPR 44.4(3), formerly known as the “seven pillars of wisdom”. Regard was had to S’s conduct in defending the claim and failing to resolve it earlier, the relatively low financial value and the importance of the matters to all parties – including the sensitivities involved in abuse claims and the significance to T of the expression of regret achieved. The court found that although there were some issues of complexity, this was not an overly complex case.
In all the circumstances, the instruction by T (resident in a National Band 1 area) of Outer London solicitors specialising in sexual abuse cases was considered reasonable.
However, the Master held that the matter “could reasonably and adequately have been dealt with by a Grade C solicitor within such a firm”. The instruction of a Grade A or B fee earner in respect of the general day-to-day handling of the claim was unwarranted. Some “supervisory” work by a more senior fee earner was reasonable and a greater involvement of a Grade A fee earner was reasonable in respect of the generic costs aspect of the bill (presumably work being undertaken across the various similar claims).
As to the rates to apply, the Court took the Outer London guideline rates for summary assessment as a starting point – but only a starting point. Regard was had to the figures proposed in the CJC’s consultation on hourly rates, in progress at the time of the assessment (but since implemented), plus the Master’s own experience. The Master took account of example comparator rates put in evidence by T but declined to give much weight to them as they evidenced only the retainer rates, not allowances.
The Court found that the rates claimed were too high. Enhancement over the guidelines was however appropriate in all the circumstances and the Master allowed the following figures (equating to uplifts of between 4%-17% over the rates from the CJC proposals): –
Grade A: Reduced from £480 per hour to £330ph
Grade B: Reduced from £365ph to £250ph
Grade C: Reduced from £350ph to £210ph
Grade D: Allowed at £135ph
Overall, the findings made on detailed assessment (particularly the decision that most of the work should have been done by the Grade C fee earner) resulted in a significant reduction of the costs claimed from £65,523 to £23,000.
This case illustrates the approach a court will often take when considering hourly rate issues (particularly claims for hourly rates in excess of the SCCO summary assessment guidelines). The matter emphasises the importance of a firm making an assessment of the 44.4(3) factors at the outset of (and indeed during) a case to ensure that appropriate decisions are taken as to e.g.
- work being undertaken by the appropriate grade of fee earner and
- the hourly rates provided for in retainer documentation.
That said, this is a first instance detailed assessment and the judgment again reiterates that any finding on hourly rates will always depend on the specific facts of the case; authorities on point are generally few and far between for this reason. The case does not and cannot set a binding precedent on appropriate fee earner grade or hourly rates.
At PIC our wealth of experience enables us to advise confidently on likely recovery as to hourly rates or fee earner grade in a given case or case type. We are more than happy to consider and advise on this issue at any point in the life of your case.
It goes without saying that when conducting costs negotiations on behalf of our solicitor clients, we will always seek the best possible outcome.
Daniel Goddard
Head of Legal Costs Training
Partners In Costs Limited
17 March 2022