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...

Read More

Recoverability of court fees where fee remission available – Gibbs v King’s College NHS Foundation Trust

By on Dec 21, 2021 | 0 comments

Significant costs, and much valuable court time, is taken up re-arguing identical points of principle in costs litigation due to the absence of a binding authority.  So it is with the issue of the recoverability of court fees. An example is where a claimant pays court fees and subsequently seeks to recover those from the defendant in circumstances where the claimant was of limited means and would have been entitled to a fee exemption as part of the fees remission scheme.  Is it reasonable for a claimant who is or may be entitled to court fee remission to forego that benefit and pass the costs of the court fees onto a defendant as part of a claim for costs? There was recently an interesting blog post from costs barrister Andrew Hogan setting out the argument from a claimant’s perspective.  The key arguments included: As a matter of legal principle, a claimant is entitled to require a defendant wrongdoer to pay for the damages caused by their wrongdoing and to refuse other forms of support or provision which would have the practical effect of reducing the defendant’s liabilities. In the context of mitigating damages, the case law is against the argument that a claimant is obliged to claim state support to mitigate a wrongdoer’s liability as the claimant had a right to claim damages from the wrongdoer without any requirement to mitigate her loss by reliance on the public purse. It is reasonable for a claimant to prefer self-funding and damages rather than provision at public expense, on the simple ground that he or she believes that the wrongdoer should pay rather than the taxpayer and/or council tax payer. In other words, it is not open to a defendant to say that a claimant who does not wish to rely on the State cannot recover damages because he or she has acted unreasonably. The reason why there is a fee remission scheme contained in the Civil Proceedings Fees Order is to increase access to justice for indigent litigants. It is not there to provide a windfall for the insurance industry, nor to deprive the courts of their proper fees, where there is an insured defendant well able to pay those...

Read More

Recovery of interest paid on disbursement funding loan

By on Jul 13, 2020 | 4 comments

Last week in Marbrow v Sharpes Garden Services Ltd [2020] EWHC B26 (Costs) (10 July 2020) the Senior Costs Judge Master Gordon-Saker handed down a reserved judgment in relation to three discreet issues where I acted for the Defendant paying party. None of the issues were novel, but they are ones that have continued to trouble the lower courts, which was no doubt part of the reason for the reserved judgment. The issue I will deal with today is the decision relating to whether the interest paid on a disbursement funding loan was recoverable as an item of cost or, alternatively, by way of allowing interest to run from an earlier period. The Claimant claimed, as an item of costs, the interest payable under a loan agreement with his solicitors in relation to the funding of disbursements. The agreed interest rate was 5%. The Claimant relied on the decision of the Court of Appeal in Secretary of State for Energy v Jones [2014] EWCA Civ 363 as authority that such an item was recoverable as an item of costs.  The Master rejected that on the basis the Court in that case was concerned with the rate of interest that could be allowed on costs from a date earlier than judgment where, as here, the claimants had incurred a liability to pay interest to their solicitors in respect of the funding of disbursements. In Hunt v RM Douglas (Roofing) Ltd [1987] 11 WLUK 221 the claimant sought to recover on the taxation of his costs the interest that he had incurred under an overdraft to fund the disbursements required for his claim.  The Court of Appeal held that funding costs had never been included in the categories of expense recoverable as costs and to include them would constitute an unwarranted extension. The Master held that it was clear following Hunt that interest incurred under a disbursement funding loan cannot be recoverable as costs and so disallowed the item within the bill. However, the Master then considered CPR 44.2(6)(g), which does allow the court to order the payment of interest on costs from a date before judgment.  He distinguished Jones on the basis it was a different case to the present:...

Read More

VAT on medical agency fees

By on Apr 10, 2019 | 0 comments

When dealing with high value personal injury litigation, paying parties tend not to lose much sleep over the issue of whether VAT should be paid on the full amount of medical records fees, where the medical records are obtained through a medical reporting organisation (“MRO”), or whether VAT should only apply to the MRO’s administration fee. On the other hand, for volume, lower value claims, the impact of this small amount per case can be significant when insurers are dealing with 10,000s or 100,000s of claims. In Matthew Hoe’s excellent “A Practical Guide to Costs in Personal Injury Cases”, published as far back as April 2016, he writes: “VAT on medical report fees is a doggedly contentious issue that has been producing notable judgments for a decade.  Although very small sums are involved in each case, it arises in so many claims that paying parties take the point.  The basic propositions are generally accepted and the disputes centre on the practices of medical agencies. … The correct VAT treatment of medical fees by medical agencies is an issue in desperate need of a decision by the senior courts to settle the point once and for all.” As if by magic, three years later we have such a decision. In British Airways Plc v Prosser [2019] EWCA Civ 547 the Court of Appeal held: It would normally be appropriate for MRO’s, in circumstances where they were doing more than simply acting as a post-box and where the report/records are being requested by the solicitors to enable them to perform their service to the client (rather than the solicitors acting just as the client’s agent), for VAT to be charged by the MRO on the total cost. In the context of a low value claims, where the amount of any VAT is not substantial, payment of VAT on the full amount was a cost that was “reasonably and proportionately incurred” and “reasonable and proportionate in amount”, so as to satisfy the requirements of CPR 44.3 regardless of whether the MRO was actually obliged to charge VAT as it...

Read More

GDPR and medical records

By on Mar 20, 2019 | 1 comment

I recently looked at the case of Beardmore v Lancashire County Council where the court allowed recovery of medical agency fees (limited to £30 in addition to the direct costs) for obtaining medical records in an EL/PL Portal claim. These records were presumably obtained by the medial agency from the GP/hospital under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 which prescribe a maximum fee by the holder of the medical records of £50 to include photocopying and postage for access to medical records. The judgment in that case made no reference to the General Data Protection Regulation (GDPR), presumably because the records were obtained before this regulation came into force (on 25 May 2018). Less than two weeks ago the Information Commissioner’s Office (ICO) posted a blog advising that it was reasonable for solicitors to use GDPR to obtain clients’ medical records.  The GDPR provides that the holder of medical records must process a request for such records free of charge and within one month. If solicitors can obtain medical records free of charge relying on GDPR, it is difficult to see how a decision could be justified to instead make the request under the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 and incur a fee in the process. If that is correct, there should, in future, be no claims by claimants for the direct costs of obtaining medical records in personal injury claims. This, in turn, raises the question of whether the continued use of medical agencies for this task is justified.  It might be argued that in non-fixed fee cases a medical agency can obtain the records more cheaply (at, say, £30) than if the fee earner undertook the task.  It is less easy to see how this would continue to be justified in fixed fee cases where the medical agency work is clearly undertaking work that is of a fee earner nature. Put another way, in Beardmore the judge concluded that the “appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records”.  If the records can be obtained free of charge by the solicitors using GDPR, what justification is there for incurring any...

Read More

Cost of obtaining medical records in EL/PL Portal claims

By on Mar 18, 2019 | 0 comments

In Beardmore v Lancashire County Council (County Court at Liverpool, 1/2/19), His Honour Judge Graham Wood QC allowed the claimant to recover medical agency fees incurred in obtaining medical records in an EL/PL Portal claim despite the fact there is no express allowance for this in the CPR, unlike the RTA Portal rules. A medical agency had been instructed to obtain the claimant’s medical records.  The direct costs were £50 for the hospital notes and £10 for the GP notes. With a profit element on top, the claimant sought £96 including VAT in relation to each. The defendant had argued that only the direct costs were recoverable. The RTA Portal rules makes specific provision for the recovery of the medical agency fee as a disbursement of up to £30 on top of the direct costs (CPR 45.29I (2A)(c)). HHJ Wood concluded: “CPR 45.29I (2) allows for the recovery of a medical agency fee in this public liability case as a disbursement, and it is not excluded by the specific reference to the maximum recovery for the medical agency fee in RTA claims. In a public liability case, in my judgment, the appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records”. In the absence of any evidence as to how the £96 figure had been arrived at, HHJ Wood allowed the same amounts as would have been recovered in an RTA Portal matter (ie the direct cost of obtaining the records plus £30 per set plus...

Read More