In Hankin v Barrington & Ors [2021] EWHC B1 (Costs) Deputy Master Campbell considered the question of whether leading counsel’s brief fee was payable in full (or in part) by the defendant when the brief had been delivered but the matter settled two and half weeks before the trial.  The brief fee was allowed, but considerably discounted from the sum claimed.

“Where a case settles after the brief has been delivered, it is no longer the case that counsel is entitled to a full fee.  There will need to be a re-negotiation between counsel’s clerk and instructing solicitors.”


The claimant suffered a serious brain injury and brought an action for damages. The action was set down for a 13 day trial starting on the 15th March 2021, it settled at a mediation on the 24th February 2021.


The only remaining issue between the parties related to the brief fee of leading counsel.   The claimant’s case was that the brief fee was recoverable in part, the  initial figure being £110,000.  The defendant’s case was that it was not payable at all.


It was common ground that the fact that the trial did not take place represented good grounds for departing from the budget.


The Deputy Master reviewed the law.

    1. Where a case settles after the brief has been delivered, it is no longer the case that counsel is entitled to a full fee.  There will need to be a re-negotiation between counsel’s clerk and instructing solicitors.  Useful binding guidance can be found in the judgment of Jack J in Miller v Hales [2007] EWHC 1717 (QB) at [7].
“The old, the very old, rule was that when a brief was delivered the full fee was payable whatever happened thereafter. Many years ago it became common for agreement to be reached between solicitor and counsel’s clerk in large cases as to the dates at which proportion of the brief fee would become payable in advance of the trial. There are two elements to be reflected there: the work counsel will put in on the brief as the trial approaches – which I would regard as the main element, and the fact that counsel has been booked for the trial and so will have a gap in his diary if the case settles, which may be difficult to fill at short notice. I would not expect today that, where no particular terms had been agreed, counsel would require to be paid his full brief fee where the brief had been delivered well in advance of the trial and the case settled soon after delivery. In short it is today appropriate to take a realistic and practical approach rather than to apply rigidly the old rule that a brief fee becomes payable on delivery of the brief”.
    1. In terms of what level of reduction would be reasonable, Mr Hughes’s skeleton has helpfully alerted me to the following cases:-
  1. i)Simpsons Motor Sales (London) Ltd v Hendon Corporation (No. 2) [1964] Costs LR (Core) 29 – Penncuick J:-
“Mr Harman contended that the proper measure for counsel’s fees is such a fee as counsel competent in the field concerned would be content to take upon the brief. Mr Bell, for the corporation, contended that the proper measure is such a fee as counsel appropriate to the brief would be content to take upon the brief.  As used by counsel in argument these expressions come, I think, more or less to the same thing.  In other words, one must envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation.  Then one must estimate what fee this hypothetical character would be content to take on the brief …  The taxing master, employing his knowledge and experience, determines what he considers the right figure.  The judge in his turn must, I think, consider whether upon his own knowledge and experience the figure adopted by the taxing master falls above the upper or below the lower limit of the range within which in his view the proper figure would come.  If, and only if, it does fall above or below those limits, he should substitute his own figure”.
  1. ii)Bowcott v Wilding [2003] EWHC 9042 (Costs).  Brief delivered on 10 April 2003 in a clinical negligence case pleaded at £1m and case listed to begin before Leveson J on 7 May 2003.  It settled on day three when the Claimant accepted a Part 36 offer made on 19 April, from which point, the judge ordered the Claimant to pay the Defendant’s costs.  The issue for Hallett J was how much of the brief fee (if any) was payable by the Defendants for costs due to the Claimant up to the date if the offer.  She allowed half the full brief fee being the commitment element as she had described it.
iii)               Lewis v the Royal Hospital Shrewsbury Hospital 20 May 2005 (unreported) – Mitting J.
    1. In Lewis, the following extract is taken from the SCCO Case Note made by the Costs Judge assessor in the days before judgments on appeals from decisions of the Masters were regularly transcribed – see No 15 of 2005:-
“Proceedings were brought in October 2002 and liability was settled by a Court Order dated 15 March 2004 …
 The case concerned a difficult clinical negligence action where a split trial had been ordered. …  The costs related to the issue of liability which was settled at 85% for the Claimant, after briefs had been delivered and about three weeks before trial.
Leading Counsel had apparently originally sought a brief fee at £15,000.  In view of the settlement it had been reduced to £10,000.  There was no evidence before the Deputy Costs Judge as to whether or not Leading Counsel had been able to refill the dates set aside for the trial.  The Deputy Costs Judge erroneously assumed he would have been able to take on other work.  He allowed a brief fee at £3,500.  The brief fee for a full trial or an aborted trial covered the commitment for that trial plus preparation and any negotiations before the trial.  It was pure speculation by the Deputy Costs Judge that counsel had other work he was able to do.  It was irrelevant whether or not counsel could take on other work.  The Deputy Costs Judge had erred in principle and the Appeal Court was entitled to substitute its own view.  The hearing was to determine liability only for which a fee of £12,500 would be reasonable and within the expected bracket.  The action had settled early. While acknowledging that Leading Counsel was fully committed there was evidence of little preparation up to the time of settlement.  In these circumstances a fee of one half of the full fee was appropriate”.
    1. So far as the actual calculation of the brief fee is concerned, in Loveday v Renton [1991] Costs LR (Core) 204, Hobhouse J said this
“In assessing a brief fee it is always relevant to take into account what work that fee, together with the refreshers, has to cover.  The brief fee covers all the work done by way of preparation for representation at the trial and attendance on the first day of the trial …  In the present case I consider that the brief fee should be assessed and allowed having regard to the full history of the trial as now known.  It thus should take into account the need for counsel to have meetings with each other and with experts out of court hours and to prepare final submissions.  But it should also take account of the fact that all heavy trials include such a need to a greater or lesser extent.  The preparation by counsel of his examinations-in-chief and cross-examinations and of his final submissions are an ordinary part of his conduct of a trial on behalf of his client.  It is all part of the work which he accepts an obligation to perform by accepting the brief and for which he is remunerated by the brief fee and the agreed refreshers”.
    1. Jackson J agreed with the judgment of Hobhouse J post the implementation of the Civil Procedure Rules in Hornsby and Others v Clark Kenneth Leventhal (a Firm) and Others [2000] 2 Costs LR 295.
    2. Assessing the brief fee is not a case of working out the hours spent by Counsel and multiplying them by an hourly rate – see judgment of Lambert J in Essex Fire and Rescue Service v [2019] Costs LR 709:-
“The Master acknowledged that brief fees are not calculated by reference to hourly rates and that the proper measure of counsel’s fees is to estimate what fee a hypothetical but not pre-eminent counsel, capable of conducting the case effectively, would be content to take on the brief”.
  1. Thus, the calculation is more nuanced and takes into account the factors mentioned by Hobhouse J such whether the trial is “heavy” and a booking fee.  It follows that in the context of the issue before me, it is worth emphasising what Jack J said in Miller, that the brief fee will also have contained an element to reflect the reserving of Mr Weir and a recognition that by clearing his diary, Counsel in all likelihood will have turned away other lucrative work in order to devote his time to the case in hand.


The Deputy Master applied the relevant principles to the current case, allowing £27,500 for the brief fee.

    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, 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.  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 b for the defendants.  I need to add in this context that Master Yoxall did not allocate the £307,500 for the trial phase as between profit costs for Irwin Mitchell and counsels’ fees.  It follows that I am not constrained to allow the figure had he made a specific allocation between the two but can exercise my own discretion in this respect.
    2. In my judgment, having regard to the authorities I have mentioned and the facts of this case, a brief fee of £125,000 plus VAT is unsupportable.
    3. I accept that this was a difficult and complex case on liability, causation and quantum, but it is not strikingly more so in these contexts than other tragic and life changing cases which come before the courts involving personal injury and clinical negligence.  The reduction in the trial length, the fact that Mr Weir had not come into the case late, (had that been the case, he would have  needed to work up his brief from a standing start), but on the contrary, had already undertaken 17.5 hours work on the matter by 26 January 2021 with a further 3 hours in conference with four experts on that date [1319], and that he has received the unchallenged fee of £15,000 for attending the mediation, are all matters which militate against the reasonableness of the fee claimed.
    4. To that I would add the point on pre-eminence.  Mr Weir can command an hourly rate of £550 per hour and in that context, I consider his rate falls fairly and squarely into the pre-eminence category envisaged by Pennycuick J since it is higher than that allowed for these types of catastrophic injury cases which come before the Costs Judges.  By way of example, in Essex Fire and Rescue Service, the Master had reduced leading counsel’s hourly rate from £500 to £400, a decision with which Lambert J did not interfere on appeal (see judgment [41-42]).  In that case, the brief fee had been claimed at £50,000 for a 15 day trial in 2013 in a Group Action involving negligence and breach of statutory duty which the judge described as “… not, by any stretch, a typical “run of the mill” personal injury action”.  Albeit 8 years later, even taking account of inflation, Mr Weir’s fee at more than double that amount, gives the appearance of being one that is unreasonably high for the Defendants to meet.
    5. All these factors militate against a brief fee for a leader of £110,000 plus VAT as being one that can be justified between the parties.  In so far as an hourly rate has been used, it is too high and reflects a sum for pre-eminence.  It is also out of kilter with a case with similarities in which Lambert J allowed £45,000 for work undertaken 8 years ago.  Doing the best I can, based upon the materials before the court, the submissions and the authorities to which I have referred, I consider a brief fee of £75,000 would have been reasonable for the hypothetical leader envisaged in the judgment in Simpsons Motor Sales undertaking a high value trial in 2021 such as this.
    6. The next point is to decide the level of abatement to take account of the fact that the trial did not take place.  Mr Hughes has accepted that a reduction as a matter of principle is justified, but submits that this should be relatively low.  He argues that preparation for a mediation is very different from getting a case ready for trial and that if the starting point is £110,000, the degree of abatement should be about 20-25 percent, meaning the brief fee should be £75,000 to £80,000.
    7. In my judgment, Mr Hughes has been realistic in making a concession, but the starting point is too high.  If that is £75,000 and £15,000 is allowed for the mediation (Mr Kirby argued that that should be set off against the brief fee, but I consider that it is a free standing instruction separate from the brief fee itself and outside the scope of the work envisaged by Hobhouse J in Loveday), I am satisfied that a much greater reduction is required.  First, it is not advanced that Mr Weir was working up his brief before the date of the mediation: if the brief was delivered on 22 February and the mediation took place two days later, it is unlikely that Mr Weir would have spent much time at all on trial preparation as he would have been getting ready for the mediation, a different type of preparation , as Mr Hughes has submitted.
    8. The case then settled at the mediation, without the trial bundles having been agreed, and with the experts then being stood down.  Correct it is that Master Eastman did not approve the consent order until 2 March, so things could not be taken for granted, but the reality of the situation is that an agreement had been reached on the damages payable, leaving merely one or two loose ends to be tied up about costs.  To all intents and purposes, the action was at an end and it was not suggested to me that Mr Weir was involved in work during that last week of February preparing for trial which can reasonably be laid at the door of the defendants.  The point made on his behalf [1316] is simply that the case could not be removed from his diary until 1 March 2021, which is different.  The inference I draw from that is that 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.
    9. 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.  In Bowcott, Hallett J attributed 50% of the brief fee to what she described as the commitment element, whereas in Miller, Jack J allocated one third of the fee to the fact that the fact that Counsel had been booked for the trial and would have a gap in his diary if the case settled, which might be difficult to fill at short notice.  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.
    10. What of mitigation of loss?  In Lewis Mitting J found that the Master had erred in speculating what Counsel might have earned after the case had settled and that that was an irrelevance.  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.
    11. In the result, I allow item 3036 at £27,500 plus VAT.
    12. In conclusion, I need to address three further points made by Mr Kirby.  First, in his submissions, he was critical of the Claimant for not having warned the defendants about the delivery of Mr Weir’s brief.  Had the Defendants known that it was to be 22 February, they would have arranged for the mediation to have taken place earlier.
    13. I have two observations on that.  First, that is to apply a hindsight test.  I agree that it would have been sensible for the mediation to have taken place before briefs were delivered, but that is to adopt a “being-wise-after-the-event” test which is not permissible – see Francis & Francis v Dickerson (1955) 3 AER 836 .  Second, this was complex, high value litigation with experienced firms on both sides.  The trial had long since been fixed for 15 March 2021.  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.  According to Mr Kirby’s skeleton argument, Plexus Law had asked on 4 February 2021 for all parties to have details of their costs available at the mediation, but if it is right that it was only on 1 March that the amount of the brief fee came to the Second Defendant’s attention, it would appear that the point was not followed up, as well as having been flagged up, earlier as it could have been.  That is not the Claimant’s fault.
    14. Next there is the staging of the brief fee.  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.
    15. Finally, there is the question of the Claimant’s approval of Mr Weir’s fees.  I agree with Mr Hughes that Garbutt is relevant by analogy.  That case concerned estimates, Arden LJ having identified the following issue for decision:-
“… can a paying party claim that his liability to the receiving party under an order for the payment of costs is discharged, or that it should be reduced, if the solicitor for the receiving party has failed to give to his client an estimate of costs in accordance with the Solicitors Costs Information and Client Care Code (“the Code”) as required by the Solicitors’ Practice Rules?”
    1. The Court of Appeal considered first in this context, the importance of the solicitor’s certificate on the bill (see paragraph [7]) and concluded that:-
    2. As a matter of policy, therefore, 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.
    3. 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.
  1. 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.  There is no need for the parties to attend when this judgment is handed down, but they are at liberty to restore this matter by letter for a further hearing about the costs giving rise to this judgment and permission to appeal if required.