COST BITES 110: THE IMPORTANCE OF ATTENDANCE NOTES: COUNSEL’S FEES INCLUDED

November 1, 2023 · by · in Assessment of Costs, Case Management, Costs

In  Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO) Costs Judge Leonard emphasised the point that records of conferences and important steps in a case are important in relation to the assessment of costs.

“… where a substantial conference takes place between solicitors and counsel I would normally expect to see a detailed record of the conference itself. Without such a record an element of doubt inevitably arises, not so much as to the time actually spent but as to whether it can fully be justified. In such circumstances, it is necessary to take a conservative approach, as it is where it is unclear exactly what work is being done or what the outcome might have been”

THE CASE

The judge was assessing costs following a private prosecution by the receiving party.  A costs order was made under section 17 of the Prosecution of Offences Act 1985.    The test is similar, but not wholly identical, to the principles that apply in civil assessments.  After carrying out a determination of some of the issues the judge provided a brief overview of the reasons he allowed the brief fees of junior and leading counsel.

THE JUDGMENT ON THE ISSUE OF COUNSEL’S FEES

    1. This is a brief overview of the reasoning behind the time I have allowed for Mr Laidlaw KC’s and Mr Smitten’s pre-brief fees, as set out in each case in a separate spreadsheet.
    1. My allowances are set out in red in columns E (Mr Laidlaw, against time claimed in column D) and F (Mr Smitten, against time claimed in column E). Some of them are cumulative figures for a given body of work, allowed at a total which I find to be reasonable. Where cells in columns E and F are blank, either nothing has been allowed for the time claimed in column D or E (as the case may be) or it has been taken into account in a cumulative total.
    1. Having taken that approach, I find no basis for any further Singh adjustment.
    1. I have, in the main body of my judgment, given my reasons for rejecting the submission that nothing should be allowed for work undertaken before the delivery of counsel’s brief fees for the first trial. I also pointed out that most of the Lord Chancellor’s objections, as set out in the spreadsheet, are formulaic, leaving it to the Appellant to justify almost every entry in the light of largely ad hoc submissions made by Mr Morris over two days.
    1. I do not believe that that would be a permissible approach on a civil assessment. I accept however that under the 1986 Regulations it is my task to investigate the time claimed and come to a conclusion on it, whether or not any specific objection is raised by the Lord Chancellor, and the Appellant has been given a reasonable chance to respond.
    1. To be clear, I have no doubt that counsel’s records reflect work actually undertaken, although I have had to resolve an element of doubt against the Appellant where some round figures have been used (for example, exactly 1 hour reviewing emails). It is unfortunate that the timed entries in Mr Laidlaw’s spreadsheet appeared to have been generated from his fees, but I have no reason to suppose that the fees themselves have not, equally, been generated from Mr Laidlaw’s own record of time spent.
    1. An element of doubt also arises where sufficiently specific records are lacking. For example, where a substantial conference takes place between solicitors and counsel I would normally expect to see a detailed record of the conference itself. Without such a record an element of doubt inevitably arises, not so much as to the time actually spent but as to whether it can fully be justified. In such circumstances, it is necessary to take a conservative approach, as it is where it is unclear exactly what work is being done or what the outcome might have been (for example, over six hours by Mr Laidlaw on 25 August 2015 “reading papers”). Much time has however been rescued by Mishcon’s efforts to put counsel’s work into context, which have largely been successful.
    1. Those efforts have demonstrated just how much work had to be done by counsel on a complex and document-heavy case. My findings reflect that, and also that there appears to have been an appropriate division of labour between counsel, with Mr Smitten for example doing the bulk of the work on the crucial bad character application. I also bear in mind that as the person primarily responsible for the proper conduct of a prosecution, Mr Laidlaw had to be closely involved from the outset (for example, with disclosure) and throughout.
    1. I am aware that much of counsel’s pre-brief fees had been estimated in advance and that counsel stayed within that estimate, demonstrating a methodical approach to the division of labour and a clear understanding from an early stage of how much work have to be undertaken, by Mr Laidlaw and Mr Smitten respectively, to manage the prosecution.
  1. As a footnote I should add that I heard a submission to the effect that work on, for example, estimating future costs is not recoverable under section 17 of the 1985 Act. I disagree. Control and management of costs is an essential litigation skill which, in a case of this kind, benefits the public purse.
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