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Is it reasonable for leading counsel to be paid a full brief fee if the case is settled? (Hankin v Barrington & Ors)

In the case of Hankin v Barrington & Ors [2021] EWHC B1 (Costs) (05 January 2022) Deputy Master Campbell, sitting in the SCCO, had to decide if it was reasonable for leading counsel to be paid a full brief fee in a case that was effectively settled two and a half weeks before a trial, counsel having undertaken no work under the same for a charge of £132,000 (£110,000 plus VAT).

The Case

The Claimant was a professional rugby player. During a pre-season tour in Budapest the team became involved in a traditional off-the-pitch drinking game, during the course of which the Claimant suffered a severe head injury. The blow to the head, which he had received during the course of the game, had been administered by the First Defendant. On his return to England the following day, the Claimant displayed symptoms of concussion.

Mr Nicholas Court, an employee of the Third Defendant, had advised the Claimant that he needed to undergo a head injury assessment (Mr Court was subsequently named as a Defendant, but proceedings were discontinued against him).  However, no SCAT test was completed and there was no follow up.  Between 8th and 15th September, the Claimant had been placed on a Graduated Return to Play although he had complained of dizzy spells and vomiting after exercise.  Following a medical review by the Second Defendant, the Claimant had been diagnosed with sinusitis and prescribed a nasal spray, a dose which was repeated on 2 October when he was told that he was fit to play rugby the following day.

During the match in question, the Claimant suffered a further head injury, resulting in another concussion. Subsequently, the Claimant was diagnosed with post traumatic vestibular disorder and persistent post traumatic vestibular migraine.  With his rugby career at an end, the Claimant started proceedings seeking compensation pleaded at £3,155,842.76 against all three Defendants who denied liability.  Directions were given for a trial on liability and quantum, to be heard over 13 Days starting on 15 March 2021.  However, the case settled at a mediation on 24 February 2021, on terms that the First and Second Defendants would pay agreed damages and the Claimant’s costs, with there being no order for costs against the Third Defendant.

The issue

The rest of the bill of costs had been negotiated and agreed, the only issue was counsel’s brief fee of £132,000. The issues were:

  • The case was budgeted, was there good reason to depart?
  • Had the Defendants been made aware of the value and trigger point for the brief fee?
  • There was no staging of the brief fee.
  • Was there a contractual obligation for the Claimant to pay the brief fee?
  • A fee of £110,000 (plus VAT) was wholly unreasonable.

Deputy Master Campbell

(1) Given Mr Hughes’s sensible concession that the fact that the trial did not take place but Counsel’s brief fee has been claimed, that is a good reason under CPR 3.18(b) to depart from Master Yoxall’s last approved budget, that aspect of the Defendants’ case does not require a decision. Mr Hughes had stated the fee should not be less than £75,000.

(2) It would have been open to the Defendants to ask “When are you delivering your brief?”.  If, as was the case, the right question was not asked, I do not follow how it can be the fault of the Claimant if the Defendants remained in ignorance of the answer until it was mentioned on 1 March, after the case had settled.

(3) Mr Kirby submitted that a staged fee would have been appropriate, as was the case for his Counsel.  However, I agree with Mr Hughes that there is no obligation on solicitors to agree staged fees and the fact that it was not done here does not render Mr Weir’s fee irrecoverable.

(4) The courts start from the position that the certificate of accuracy has been properly given. There must be good reason to justify going behind the certificate. Here, I am not persuaded that speculation about what the Claimant may or may not have been told and agreed is sufficient to go behind the certificate.  Indeed, the starting point is that where a client instructs a solicitor “it is normal that solicitors acting for a client expect to be paid, this is the default position.”  See judgment of Roth J in Robinson v EMW Law LLP [2018] 4 Costs LO 477.   I have no reason to doubt that proposition so far as the Claimant here is concerned. For these reasons, the point fails.

(5) It follows that the starting point is to decide what, (if any) would be a reasonable sum to allow for Mr Weir’s brief fee, with the parameters being £132,000 for the Claimant and £nil for the Defendants.

The case settled at the mediation, without the trial bundles having been agreed, and with the experts then being stood down.

Mr Weir was not hard at work in preparing the case during the days beforehand.  That is important because it was a point which Mitting J found persuasive in Lewis, holding that with evidence of little preparation, just 50% of the brief fee was allowable.

Against that, there is the point that Mr Weir had booked out time from his busy diary to accommodate the case, and as a matter of principle, Counsel is entitled to be paid for the loss of the chance to appear at the trial and for the fact that he turned away other remunerative work in order to take the case.  That is correct so far as it goes, but the time scale between the date of delivery of the brief and the expected trial date was about three weeks, and as Mr Hughes has conceded, there must be an abatement. As I have said, Mitting J allowed 50% of the brief fee where the action had settled three weeks before the trial.

Taking these facts into account, I consider that an abatement of 50% of the brief fee would be appropriate here, meaning the allowance, subject to what I say below, should be £37,500, plus VAT.

What of mitigation of loss?  Here, however, evidence has been advanced that Mr Weir undertook six consultations and two short hearings, so there is no need for any speculation.  Mr Kirby submitted that these earnings should be taken into account which he put at £11,000.  Mr Hughes did not advance his own figures but did not challenge those put by Mr Kirby.  I agree that credit must be given for those sums.  Mr Weir took steps to mitigate his loss and did so.  I consider that that factor must be taken into account when assessing what it is reasonable for the Defendants to pay, just as the Claimant himself would be entitled to ask: “if Counsel took other work, why should I pay the full brief fee?”  Looking at matters in the round, I would attribute £10,000 to mitigation.

The brief fee is allowed at £27,500 plus VAT.  The Defendants are to pay the costs of the detailed assessment under CPR 47.20 in relation to this point, subject to the court being invited to make a different order should there have been an offer which the Claimant has failed to beat.

This case re-iterates the strength of the certificate of the bill of costs. It also supports good reason to depart from a budget where a trial does not go head, but as to costs of assessment, leaves open an interesting question regarding the Defendants’ offer.

Why did the Defendant only offer nil? In our opinion the court was always likely to give a positive value to the brief fee.

If you require any assistance with your legal costs requirements, please do get in touch with the team on 01733 350 880, or by email mail@aandmbacon.co.uk. For more information please do visit our website www.aandmbacon.co.uk.

Published 03.02.22

Author – Reuben Glynn

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