BRIEF FEE NOT TO BE ABATED BECAUSE OF VERY LATE SETTLEMENT: HIGH COURT DECISION TODAY

In Hugh Cartwright & Amin v Devoy-Williams & Anor [2018] EWHC 1692 (QB) Mrs Justice Nicola Davies MBE (sitting with an assessor) overturned a decision of a Master where counsel’s brief fee was reduced because the matter had settled the afternoon before the trial.

 

THE CASE

The matter related to a solicitor and own-client assessments where the appellant’s former clients had their bill of costs assessed. One of the Master’s decisions was to reduce counsel’s fee for a hearing on the grounds that the matter had settled the day before the trial was due to start.

THE JUDGMENT ON THE BRIEF FEE ISSUE

    1. The brief fee claimed was £6,500. The Master allowed £3,000 to include £500 for jurisdictional issues. The Master’s reasoning on this point is less than easy to discern. He states that
“If this was a claim between the solicitor and the client for a brief fee, the figure of £6,500 works out in terms as to preparation and first day of hearing, in my view, to a sum which would reasonably be payable by the client. But the client here is the solicitor itself and it seems to me there are two simple points to be made. The barrister having been instructed previously was at a rather lower fee: but equally the mediation time claimed by the solicitors suggest that it was wrapped up by the end of the afternoon because it is only seven hours claimed. That is the point which counsel should have been informed that the case had settled, not at 10:30pm as it would appear has happened. So, as far as costs between the parties are concerned, it does not seem to me to be reasonable for all of counsel’s brief fee to be paid by the defendant. It could have been cancelled in the afternoon. No doubt at least some of the preparation could have been avoided and counsel could have done something else the next day. …as far as an abated brief is concerned, because it settled the previous afternoon, I am going to allow £3,000 which is effectively the previous brief with £500 for jurisdictional issues which Mr Munroe was entirely aware of.”
    1. It is the appellant’s case that the brief fee was for a two-day trial plus a half-day jurisdiction hearing. The work to be done by the barrister did not materially change because his client was a solicitor. The reference to the previous hearing was in respect of a different barrister and a different hearing with different arguments. The mediation did not in fact end until 10:30pm the night before the jurisdiction hearing. The brief fee was agreed and payable by 4:30pm. Until the settlement was concluded counsel could not be stood down. In the context of a case where many points were being taken no counsel would ever be stood down until a final settlement was reached. The decision to reduce the fee was wrong, particularly so in relying on the fact that counsel could have done something else.
    2. The respondents contend that when the Master was correctly making the point that although the parties were formerly in a solicitor and client relationship this was not a Solicitors’ Act assessment. He used the correct test on the standard basis and properly took into account that the mediation had substantially ended on the previous afternoon. Counsel would have been aware that where a mediation is held the day before a trial there is a good likelihood that the trial will not go ahead. The judge was entitled to take into account that the hearing was not effective and counsel would not have to attend. The judge’s decision was not wrong, it was a permissible exercise of his discretion. The reduction to £3,000 was a fair one, even if some of the judge’s reasoning did not stand up to scrutiny.
Conclusion
  1. In the context of this “high temperature” litigation the case was not settled until it was finally settled, which was not until 10:30pm on the night before the jurisdiction hearing. Counsel’s brief fee had been incurred. No counsel properly observing his or her duty would stop working on this case until he or she had been informed of a final settlement. All the preparation work had been done. The barrister was entitled to be paid his or her fee. The Master erred in finding that the brief could have been cancelled on the previous afternoon and that some of the preparation could have been avoided. The Master originally accepted that the fee per se was reasonable but reduced it for reasons which do not stand up to scrutiny. Reference to an earlier hearing was of limited or no relevance as this was a different hearing with different considerations and where the Master had found that the brief fee for this hearing was itself reasonable. Whether or not the barrister could find something else to do is not relevant to the brief fee which was payable on a brief properly delivered. There were no good grounds to reduce the brief fee. There is no evidence before this Court to support an argument that the lower fee was appropriate. Accordingly this Ground of Appeal succeeds both as to the exercise of discretion and to the sum claimed.”