Guideline Hourly Rates Application - written by Wayne Spring - 31/01/2022

Guideline Hourly Rates application, Counsel fee notes and bill preparation

In the case of R –v- Barts Health NHS Trust [2022] EWHC B3 (costs) which was heard by Costs Judge Rowley, a number of interesting points were considered. The importance of the case cannot be overlooked as it was advocated by leading Counsel on both sides (Mr Vikram Sachdeva QC for the Claimant and Mr Roger Mallalieu QC for the Defendant) and looked at the issues of hourly rates, the use of Counsel and the impact of the hourly rates, details required on the fee notes and also the drafting of a bill where there are two actions running parallel with each other. The case was heard on the 9 November 2021 with the judgment being delivered on the 6 January 2022. A copy of the decision can be located at https://www.bailii.org/ew/cases/EWHC/Costs/2022/B3.html 

Hourly Rates 

Paragraph 44 sets out an interesting position which, whilst case specific could be relied upon as it is suggested that cases which were commenced in 2019 should have the correct starting point for the GHR to those of the 2021 rates. Costs Judge Rowley states “The events of this case all took place during a short period in 2019. The guideline hourly rates (“GHR”) operative from 1 October 2021 are, in my view, likely to be the preferred starting point in most cases (rather than the 2010 version). Where the work is as recent as 2019, it seems to me there is really no argument that the correct starting point is the 2021 guideline figures…” 

Information on Counsel’s fee notes 

Paragraph 41 dealt with that issue, where Costs Judge Rowley stated “In relation to the perceived inadequacy of detail in counsel’s fee notes, there is nothing in my view which requires the receiving party to provide any particular level of information regarding the fees that are claimed. The sums claimed are set out in Counsel’s fee notes and that is sufficient for purposes of the indemnity principle. Thereafter, it is a matter for the receiving party as to whether or not it can prove that the fees incurred were reasonable in nature and amount. To the extent that there is inadequate explanation on the fee notes, it is the receiving party which takes the risk since the benefit of the doubt will be exercised in favour of the paying party. I do not propose to make any form of order which requires further information to be provided. 

Bill preparation 

Costs Judge Rowley set out the nature of the duty owed by the Receiving Party when preparing the bill of costs. At paragraphs 35 – 40. Here it is stated that “35. It is, and always has been, for the receiving party to draft the bill of costs to reflect any necessary division of the work that has been done. There is no realistic way, absent the receiving party’s file, for the paying party to be able to interpret the time claimed in order to be able to challenge items in the bill in the fashion contended for by the claimant. If that division has not been carried out, bills are regularly returned in order for them to be redrawn. Where, as here, the receiving party argues that it is not required, then it will have the effect of the court receiving more speculative arguments from the paying party and being required to spend longer on each entry before reaching a decision.

36. The position is not, as Mr Sachdeva, contended, that all the work is recoverable unless it can be specifically shown to be additional work that would not have occurred in any That approach runs far too close to the non- divisible common costs situation (or even a Medway Oil approach as Mr Mallalieu pointed out) than is appropriate for dividing common costs in this case. 

37. Nor does it mean that if, for example, a brief fee would be reasonable if it only dealt with a recoverable aspect, then it will be allowed in full even if the fee also covered an irrecoverable The authorities are clear in my view that in such circumstances, the court has to assume that the brief covered both aspects and needs to be divided. If the receiving party obtained a very good deal with counsel’s clerk on the fee, the paying party is entitled to share in that good fortune. 

38. These various examples and comments amount to a recognition that the defendant can have some expectation of a reduction of the fees claimed in this bill, notwithstanding that I prefer the claimant’s general 

39. Separately, it does seem to me that, in this case, the Court’s understandable decision to run the proceedings concurrently may have saved costs in some areas but it will inevitably have increased costs in terms of the number of parties with which to communicate and the issues with which other parties considered As one example, videos of Tafida were provided to Irwin Mitchell by another party and they were then passed to counsel. It was not clear to the solicitors when forwarding them to counsel whether they would be of any particular assistance, but it seems to me to be unrealistic to conclude that it was unreasonable to consider such evidence provided by other parties. If there had not been concurrent proceedings, then that evidence probably would not have been provided, but that is the price for proceedings being run very quickly and in conjunction with other proceedings. 

40. During the course of the hearing, I did express the view that preliminary points such as this one often proved difficult to determine in any conclusive Notwithstanding counsel’s best efforts I have, it seems to me, only reached the position of giving some guidance in relatively broad strokes with the details needing to be filled in at the detailed assessment hearing. Nevertheless, it appeared to be the point on which the parties were most anxious to have some determination and therefore I have tried to provide some examples of the points raised and the views that I hold about them. 

This decision is very useful in considering the issues regarding challenges to the hourly rates but also to the reader, be aware that when the final report on the GHR was published it was recorded that they would be effective from 1 October 2021.

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By Wayne Spring

January 2022