How many lawyers does it take…?

Any advocate regularly attending court hearings will confess that one of the most difficult parts of the job is trying to frantically scribble down submissions from your opponent, or findings made by the judge, whilst formulating counter arguments or working through what the decision means generally for the case you are advancing. As a costs lawyer, there is an added burden of having your calculator out (or Excel spreadsheet open) in order to amend and update figures as costs are being assessed.

It has therefore always been a bugbear of mine - when considering bills of costs submitted by successful claimants - to see a plethora of lawyers deployed for conferences, court hearings or settlement meetings consisting of lead and junior counsel, multiple solicitors, and a paralegal or trainee solicitor. As I slowly start to eject the toys from my pram, I inevitably ask the question: What on earth are they all doing? They can’t all be speaking at once; they can’t all be adding something to the claim that the others are incapable of knowing or understanding; they can’t all be “preparing a detailed file note?”

If I sit opposite another costs lawyer or barrister on my own for three or four days in a row whilst seven figure sums are dealt with and formally adjudicated upon, why is a team of lawyers and barristers - in not wholly dissimilar circumstances – required to deal with substantive issues of equal or lesser value and complexity?

However, as I slowly gather and return the toys to my pram, common sense and reasonableness overwhelm me, and I remind myself I am required to apply a more subjective analysis of the circumstances in which the presence of multiple solicitors or counsel may be justified.

A view from the Senior Costs Judge

I was interested to read the views of the Senior Costs Judge Master Gordon-Saker in Regina (Fuseon Limited) v Shinners (09/04/20) arising from a rehearing of an appeal from determination of costs by a case manager. In the context of a payment out of central funds arising from a private prosecution in the Crown Court, the Senior Costs Judge made two interesting remarks, perhaps of wider significance than the individual facts and circumstances before him:

1. “Reasonable time spent in inter-fee discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and the delegate is usually now considered to be recoverable. Insofar as the Legal Aid Agency’s Criminal Costs Assessment Manual, as quoted by Mr FitzGerald-Morris, may suggest otherwise, in my view it does not reflect current practice and is wrong. As Laing J said in TUI UK Ltd v Tickell [2016] EWHC 2741 (QB):

“I agree with the Master that, in principle, if, as here, much of the work on files was being done by paralegals under the supervision of legal executives, it was necessary, from time to time, to have discussions between fee earners, specifically supervising solicitors, including partners.

2. On the other hand, two fee earners attending on a witness or the client will rarely be reasonable, unless there is a specific reason. Lawyers should be reasonably adept, like most people, at speaking or listening and writing at the same time. For similar reasons I cannot see that more than one fee earner attending trial, together with counsel, was reasonably required save that I would allow FG, as disclosure officer, to attend the start of the trial in addition to ME. This was not a case which involved substantial documentation (114 pages of statements and 2,116 pages of exhibits) or a significant number of witnesses.”

Application in Practice

I have certainly witnessed a rise in the last 10 years in the number of hours claimed in high value claims for “inter-fee earner discussions”. Where the court accepts a team approach to the litigation is justified, it can often be difficult to make inroads at detailed assessment into the costs arising from short discussions centring on precisely what is described above as “the reasonable time of the delegator and the delegate”. It seems the views of Master O’Hare in Re Radcliffe [2004] EWHC 90039 (Costs) - that the allocation of tasks between fee earners is part of the irrecoverable overhead of the firm - is being increasingly thrown into the costs-bin of yesteryear.

But on a more positive note, paying parties can take comfort that the Senior Costs Judge is looking for some added value where multiple legal representatives are present for attendances or hearings. If the claimant lacks capacity or otherwise presents with features that make explaining issues and taking instructions difficult, it would perhaps not be unreasonable for the lead fee earner to focus exclusively on the client, whilst a junior fee earner records the exchanges in a file note. However, simply having dual fee earners present as a matter of course is not likely to satisfy the “specific reason” test the Senior Costs Judge advocates. Likewise, a conference with counsel and two experts on liability is highly unlikely to warrant both lead and junior counsel in tandem with the lead fee earner and a junior assistant present in nothing more than a note-taking capacity. Only one barrister and the lead fee earner would likely be reasonable and proportionate in such circumstances.

Where lengthy hearings occur, most multi-track claims these days will have the benefit of an approved costs budget to dictate the level of recoverable costs. But equally important at either the costs management or detailed assessment stage is for proper regard to be given to the volume of witnesses, experts and documentation involved when considering the number of solicitors and/or barristers required to assist the court in the smooth running of the case. Also, just because lead and junior counsel, the conducting solicitor and an assistant (or two) may be required at the very start of a lengthy trial to organise and chaperone clients, experts and witnesses - it does not necessarily follow that all such individuals will be required for the entire duration of the trial.

Conclusions

Where multiple solicitors or barristers are intended to be utilised by a party, when it comes to the recoverable costs of such, both the receiving and paying party must ask themselves what is the specific reason for such approach; and what is the added value each individual brings to the table that is not otherwise provided by another. Ignoring these fundamental questions can leave either the paying party with an unreasonably high costs spend, or the receiving party with a hefty shortfall in between the parties recovery.