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Is an appropriate grade of fee earner handling the case?

TRX v Southampton Football Club Ltd [2022] EWHC B7 (Costs) provides guidance on fee earners in abuse cases and highlights the likely approach of a Court when assessing recoverable hourly rates and consideration of the appropriate grade of fee earner

The claim was brought about by a victim of convicted football coach, Bob Higgins, for personal injury arising from alleged historical abuse. The Claimant asserted the Defendant was vicariously liable. The Claimant instructed Bolt Burden Kemp, and this was one of twenty-six similar claims. 

The claim was valued on issue up to £50,000.00. The claim was defended on the grounds that the abuse was not an actionable tort and on limitation. Following service of the Defence, the matter was allocated to the multi-track. Shortly after, the matter settled for £4000.00.

Bolt Burden Kemp claimed costs of £65,523.26. They maintained that the settlement value was on a commercial basis and the outcome did not reflect its full value. At least five different fee earners worked on the case. 

The judgment sets out the decision of Master Brown on the issue of recoverable hourly rates. 

The Master considered the factors set out in CPR 44.4(3), the “seven pillars of wisdom” which state:

“(3) The court will also have regard to – 

(a) The conduct of the parties, including in particular –

1. Conduct before, as well as during the proceedings; and
2. The efforts made, if any, before and during the proceedings in order to try to resolve the dispute

(b) The amount or value of any money or property involved;

1. The importance of the matter to all parties;
2. The particular complexity of the matter or the difficulty or novelty of the questions raised;
3. The skill, effort, specialised knowledge, and responsibility involved;
4. The time spent on the case;
5. The place where and the circumstances in which work or any part of it was done;                and
6. The receiving party’s last approved or agreed budget.”

Master Brown noted that the matter could “have been resolved at an earlier stage,” it settled for a “relatively modest sum” and “it was not readily apparent that it was a very complex case”.

Master Brown held that these sorts of claims, could be largely conducted by a Grade C fee earner with some supervision in a specialist firm. He concluded “it seems to me, if one is instructing such a firm one would reasonably expect a Grade C Solicitor who will be qualified and would have had experience with sexual abuse claims for up to four years, to be able to conduct the claim as the principal or main fee earner. I do not take the same view as to the generic costs aspect of the bill, in respect of which I consider a greater involvement of Grade A fee earner appropriate. I do also accept that in relation to work on this particular claim, some input by way of supervision, if that is the right term, from a more senior fee earner, a Grade A or Grade B fee earner, is also reasonable.”

As to the hourly rates, the Claimant lived in a National Band 1 area, his Solicitors were based in London. The instruction of Outer London Solicitors specialising in sexual abuse cases was considered reasonable.

The Court found the rates claimed were too high, the Outer London guideline rates for summary assessment were used as a starting point and an enhancement was deemed appropriate. Master Brown allowed the following figures:

Grade A – reduced from £480 per hour to £330 per hour

Grade B – reduced from £365 per hour to £250 per hour

Grade C – reduced from £350 per hour to £210 per hour

Grade D – allowed at £135 per hour

These rates were applied in line with the guidance that a Grade C fee earner should have undertaken most of the work. This resulted in a significant reduction of the costs claimed from £65,523.26 to £23,000.00.

This case highlights the importance of making an assessment of the 44.4(3) factors at the outset of, and during a case, to ensure that the appropriate grade of fee earner has conduct of the matter and that appropriate decisions are made. 

The Judgment reiterates that any findings on hourly rates will always depend on the specific facts of the case. Although the case provides useful guidance as to the Court’s approach, it does not provide authority that all such cases as this be dealt with by a Grade C fee earner.

PIC have extensive knowledge and can advise upon and maximise the recovery of costs. Please contact PIC if you need any assistance.