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R v Barts Health NHS Trust - what affect does the use of specialist Counsel have upon the reasonably recoverable hourly rate for the solicitor?"(Part Two)

What affect does the use of specialist Counsel have upon the reasonably recoverable hourly rate for the solicitor?

The R v Barts Health HNS Trust case concerned a child Claimant (who brought the proceedings through her litigation friend) who had sustained a severe brain injury that resulted in her requiring full-time care at the Paediatric Intensive Care Unit, and the treating doctors were of the view was that treatment ought to be withdrawn and only palliative care given – with which her parents disagreed.  The Master recognised that the proceedings moved quickly from commencement to hearing and involved numerous legal teams.

The events took place in a short period in 2019 and Master Rowley took the October 2021 guideline rates as the preferred starting point (rather than the 2010 guidelines), stating;

“Where the work is as recent as 2019, it seems to me there is really no argument that the correct starting point is the 2021 guideline figures.”

The Defendant argued that the solicitors had passed the “baton of responsibility and importance to the claimant” to Counsel and this should be reflected in the hourly rates allowed.  The receiving party Claimant in the judicial review proceedings was represented by leading and two junior Counsel.  The paying party averred that this means the Claimant’s solicitor did not “have to exercise any more skill, effort and specialised knowledge than that of an un-specialised solicitor.”  The Claimant queried the relevance of the guideline rates and argued that the case was ground-breaking and it was literally a life-or-death decision.

Master Rowley determined that the hourly rates claimed were entirely reasonable given the vital nature of the proceedings, commenting that “In particular, 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.”

Of general interest Master Rowley stated “… 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”.  To come to this conclusion he reviewed the papers between solicitor and Counsel and satisfied himself that the solicitor did demonstrate expertise in their dealings with Counsel and other solicitors.  The issue of whether there was too much involvement of Counsel was left open for detailed assessment, which could result in reductions to the solicitor’s time or Counsels’ fees.

Here’s what the rates claimed and allowed look like:

Grade Claimed & allowed National Band 1 2021 guidelines % above guideline rate allowed
A £315 £261 20.7%
B £275 £218 26.15%
C £235 £178 32%
D £140 £126 11.1%

The use of the 2021 guideline rates as a starting point follows other cases doing so, such as His Honour Paul Matthews in Axnoller Events Ltd v Brake & Anor (Summary Costs Assessment) [2021] EWHC 2362 (Ch) and in ECU Group plc v Deutsche Bank [2021] EWHC 2083 (Ch).  As can be seen in the present case, where reasonable hourly rates in excess of the 2021 guidelines are being allowed for work pre-dating the introduction of the guideline rates by a couple of years.

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 7 March 2022

Author – Caroline Cousins

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