Legal Cost Specialists

Counsel’s brief fee where case settles early – Hankin v Barrington

By on Jan 12, 2022 | 1 comment

There used to be a very old rule whereby counsel was entitled to their full brief fee once the brief had been delivered even if the case settled before the date fixed for the hearing. This is no longer the case. A recent example of the correct approach is to be found in the decision of Deputy Master Campbell in Hankin v Barrington & Ors [2021] EWHC B1 (Costs). Where a case settled early there would “need to be a re-negotiation between counsel’s clerk and instructing solicitors”.

A brief fee of £125,000 plus VAT has been agreed by the Claimant’s solicitors with their Leading Counsel in respect of a matter listed for a 13 day trial. The claim concerned a severe head injury pleaded at over £3 million with liability and quantum in dispute.

The trial was listed to commence on 15 March 2021. The brief was delivered to Leading Counsel on 22 February 2021. The claim settled by way of mediation on 24 February 2021 (although the Consent Order was not approved until 2 March 2021).

£15,000, of the £125,000, was attributed to Leading Counsel’s fees for attending the mediation. This amount was not disputed by the Defendant paying party. The balance of £110,000 was claimed in full as the brief fee.

The matter had been subject to a cost management order. At the detailed assessment, the Claimant conceded (in what was described by the Deputy Master as a “sensible concession”) that the fact of the matter had settled pre-trial amounted to a “good reason” under CPR 3.18(b) to depart downwards from the last approved budget.

The brief fee had been calculated, at least in part, on Leading Counsel’s hourly rate of £550. The Deputy Master was of the view that such a rate was “higher than that allowed for these types of catastrophic injury cases which come before the Costs Judges” and was “too high”. The deputy Master decided that the starting point as to what would have been a reasonable brief fee was £75,000.

The Deputy Master then decided what further reduction should be made to that amount to reflect the fact that the trial did not take place. The Deputy Master was of the view that it was unlikely that much time at all would have been spent on trial preparation prior to the matter settling given Leading Counsel would have been getting ready for the mediation. The correct starting point, in the Deputy Master’s view, was that the brief fee should be reduced by 50% to £37,500 plus VAT to reflect the early settlement.

A further issue arose in that there was evidence before the Court that Leading Counsel had been able to undertake some alternative paid work for the period that had been booked for the trial. The evidence was that the earnings for this period amounted to £11,000. The Deputy Master approached this issue on the basis that much of this work would represent Leading Counsel properly attempting to “mitigate his loss” for the fact that the trial had not proceeded. He attributed £10,000 of these earnings to such “mitigation”. He therefore deducted this further figure of £10,000 from the £37,500 to leave a total payable by the Defendant of £27,500 plus VAT.

    1 Comment

  1. Two comments on this:

    – The “Simpsons” principle that you can’t recover the cost of instructing “pre-eminent” counsel is entirely judge made, from a 60 year old decision made when the wording of the rules was significantly different. Surely, the test now is simply whether it is reasonable and proportionate to instruct counsel who is so universally recognised as at the top of the game – like Rob Weir – that s/he can charge a premium. That, after all, is the only test the rules impose. It clearly wouldn’t be proportionate in a run of the mill case. But in a case of exceptional difficulty or importance it would be. I think the Deputy Master should have considered whether this was such a case, rather than simply saying that you cannot recover the premium for a “top silk” as a matter of law.

    – The judgment is not very clear on when the “mitigation” work was performed. The blog simply refers to it being performed during the period “booked for trial”. But if it was performed after the date the trial was due to start, the work isn’t mitigating the loss of the brief but the loss of the refreshers, and was irrelevant. The deputy master may therefore have been in error on ths. That is not however the only ground on which this is problematic. The first is that it entails double-counting, as the abatement of the brief fee already reflects the fact that counsel can use the time liberated by settlement to perform other work. So the deputy master has imposed both a general and a specific reduction in counsel’s fees for the same thing. The second is that it can’t be assumed that counsel preparing for trial do no other work. I certainly still have cons in other cases during trial prep periods.

    Jacques Hughes

    12th January 2022

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