This blog is written by Lois Aldred, a member of 12KBW’s costs team and is the second of a two-part blogpost looking at R v Barts Health NHS Trust  EWHC B3 (Costs). This blog focuses on the second central issue considered by Master Rowley: when will specialised solicitor hourly rates be recoverable?
The background to this case is set out in our previous blog, see here. In short, it involved a severely brain-damaged little girl, Tafida, and whether her treatment ought to be withdrawn and only palliative care be given.
The hourly rates claimed were subject to challenge before Master Rowley. The Claimant lived in London but had instructed Irwin Mitchell in Manchester, the paying-party took issue with this. An obvious reminder was given that it is usually a bad point to suggest that it was unreasonable to instruct solicitors in a different area, if the area is cheaper than the claimant’s locality. It was held [@ 42]:
“There can hardly ever be any criticism of a receiving party who instructs solicitors in a less expensive area of the country.”
Once Manchester was accepted the Court found that the 2021 Guideline Hourly Rates were the preferred starting point for work undertaken in 2019, rather than the 2010 Guideline Hourly Rates. No great surprises there, you might say.
The need for the exercise of specialist skill once the baton has been passed to Counsel
The more interesting and central point made by the Defendant questioned the need for the exercise of specialist skill by the solicitors if the “baton of responsibility and importance to the claimant” had been passed to Leading and Junior Counsel and if the solicitors relied heavily upon counsel’s specialised knowledge and skill to take the case forward. As such, it was argued the claimant’s solicitors did not “have to exercise any more skill, effort and specialised knowledge than that of an un-specialised solicitor.”
Master Rowley reminded himself that in cases that do not require a specialist solicitor, the hourly rate will be reduced to a non-specialist firm rate or more junior solicitor rate. Nonetheless this was not apposite here. The Court held [@ 50]:
“it is hard to imagine any case involving more importance to the client or, given the need for urgent action, one which would score more heavily on the circumstances in which the work was done.”
The Defendant also argued that the claimant’s solicitors did not display their skill in this particular case, and rendered their own specialism redundant due to the choice of Counsel and the arguments run. This was resolutely rejected [@ 53]:
“It is in my view, a remarkable suggestion that a case whose own weight clearly justified using expertise to pursue it, can be downgraded in the choice of an appropriate solicitor by that solicitor’s choice of external assistance.”
Master Rowley no doubt was assisted by a perusal of the correspondence between Counsel and the Claimant’s Solicitors that lead him to the conclusion [@ 54] that:
“There is very much a team effort between solicitors and counsel”. He went on [@ 55]: “I therefore conclude that the solicitors not only had the requisite skill, effort and specialised knowledge and responsibility appropriate for this grave case but also demonstrated it in their dealings with counsel and other solicitors. There is no warrant in my view for there to be a reduction in the hourly rates claimed simply on the basis that counsel was also involved in dealing with matters.”
The hourly rates were awarded as claimed.
- Paying parties should take a realistic view as to whether the case merits a specialist firm with corresponding fees in formulating offers on costs.
- In cases requiring specialism a whole team of specialist legal advisors, including Counsel may well be reasonable.
- Receiving parties, be prepared for your file to come under scrutiny from the Costs Judge when determining whether the work your fee earners undertook merited any ‘specialist’ fee. The Costs Judge may not have a background in your specialism, so make it easy and show your worth.