Levelling up outside London
How the new guideline rates arguably improve the financial positions of Provincial Firms
The settled position in respect of charging rates is (arguably) derived from published guidelines (most recently from 1st October 2021) in the context of CPR 44.4 (3) and principally per the decision of the Court of Appeal in Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132.
This means the Court will (ordinarily) consider hourly rates based on the Claimant’s geographical location, having regard the circumstances of the claim.
As a rule of thumb, the expectation is that a litigant will seek “on the doorstep” legal advice.
The guideline charging rates with affect from 1st October 2021 are –
It is immediately apparent that there has been a national levelling up outside of the London area, with the only material difference being Grade A, where Band 2 is a roughly 98% of Band 1.
Previously the 2010 guideline rates comprised significant differences.
The position now, is that outside of London, a choice of Solicitor anywhere in England & Wales is arguably objectively reasonable, and that the only costs “caught” by Wraith would be travelling times and expenses where the receiving party and Solicitors are distant from each other.
GUIDE TO THE SUMMARY ASSESSMENT OF COSTS
27 ………The guideline rates are not scale figures: they are broad approximations only.
28…….. They may also be a helpful starting point on detailed assessment.
29. In substantial and complex litigation an hourly rate in excess of the guideline figures may be appropriate for grade A, B and C fee earners where other factors, for example the value of the litigation, the level of the complexity, the urgency or importance of the matter, as well as any international element, would justify a significantly higher rate……
CPR 44.4 (3) is summarised and applied at paragraph 16 of the Guide to the Summary Assessment of Costs –
Rule 44.4(3) sets out the factors to be taken into account in deciding the amount of costs. Those factors include: the conduct of the parties, including conduct before as well as during the proceedings; the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; the value involved in the proceedings; the importance of the matter to the parties; the complexity of the proceedings; the skill and specialised knowledge of the lawyers; the place where the work was done; and the receiving party’s last approved or agreed budget
Conclusion
It must surely now be even more arguable, that for example in a complex clinical negligence case, there can be no significant difference between what a reasonable hourly rate might be for a big firm in say Manchester Central compared with a high street firm in Dorset. This is because hourly rates in the context of the above guidelines are now wholly current and predicated on an evidenced based review and are the starting points becoming increasingly more malleable the more the circumstances of the claim converge with the criteria prescribed by CPR 44.4 (3).
The Foreword in the Guide to the Summary Assessment of Costs by the Master of the Rolls refers –
In every case, a proper exercise of judicial discretion has still to be made, after argument on the issues has been heard.
There are of course exceptions and contrary arguments, and these are separate matters, but ultimately achieving properly rewarding hourly rates remains challenging and contentious.
Finally, and noteworthy is paragraph 31 of the Guide to the Summary Assessment of Costs, where work is undertaken remotely:
Where all or part of the work on a case is done in a different location from that of the solicitor’s office on the court record, the appropriate hourly rate for that part should reflect the rates allowed for work in that location, whether that rate is lower or higher (provided that, if a higher rate is claimed, a decision to instruct solicitors in that location would have been reasonable). The location of a fee earner doing the work is determined by reference to the office to which s/he is, or is predominantly, attached.
Mark Balme – Senior Costs Consultant
Mark Balme, Senior Costs Consultant
25.11.21