Hourly rates: G v Kingston upon Hull City Council

Following on from my recent post about the role of Guideline Hourly Rates in detailed assessment hearings comes the decision in G (by her mother and litigation friend M) v Kingston upon Hull City Council (Kingston upon Hull County Court, 18/09/13).

Costs Lawyer Jon William’s always excellent costs blog provides a more detailed analysis but here are some of the key passages from the judgment:

“This costs appeal allows this court to set out the principles to be applied by District Judges (usually acting as Costs Judges) when determining a detailed assessment of costs as opposed to a summary assessment by a trial judge. One critical issue has been addressed – is there a material difference between the two?

A detailed assessment is not a scientific process, neither is it a process which will produce a necessarily right or wrong answer. A multiplicity of different methods for establishing the appropriate hourly rates has flourished. At the heart of this appeal is the question of relevance of the guideline rates. The range of possibilities varies from following those rates slavishly; to ignoring them altogether. There are clearly many shades in between those two extremes. Whilst they are described as “guidelines” for “summary” rather than detailed assessment, it is nevertheless commonplace on both summary and detailed assessments for courts to be referred to the guidelines. This is often on the basis that they should be uplifted (on the receiving party’s submission); disregarded entirely (receiving party); or followed (a common submission from a paying party in response to a Bill claiming higher rates than those in the Guidelines). However it is put, it is a matter for the court’s discretion. The seven factors in CPR 44.5(3) will be relevant; but the weight afforded to each factor is a matter for the wide discretion of the costs judge.

As we shall come to explain the guidelines are an extremely useful tool for detailed assessments, but they are not to assume an enhanced status beyond a useful starting place or cross-reference point. We emphasize at once that a detailed assessment requires the exercise of judgment as we hereafter set out.

We disagree with Mr Bacon, however, when he submits that the guidelines have no relevance whatsoever on detailed assessments. Having carefully considered the authorities referred to we take the view that it is not wrong in principle at all, and is entirely appropriate, for the guidelines to be referred to during a detailed assessment and/or for them to be used as a starting point or crosscheck. It seems to us that, to the extent that the authorities cited make any criticism in respect of the use of the guidelines, such criticism is aimed at slavishly following or adhering to them without a considered reference to the CPR 44.5(3) factors. Indeed it is difficult to see how hourly rates can be properly assessed in a vacuum without at least some starting, or reference, point. If Mr Bacon’s contention is right it is difficult to see why there is a requirement for the status of the fee earner to be included on the Bill. There must be some starting point for the consideration of the appropriate hourly rate and we are satisfied that the authorities do not criticise reference per se being made to the guideline rates subject to the provisos mentioned above. However whilst the District Judge in this case did in fact allow a rate in excess of what he found to be Miss Coulson’s grade, this was only on the “robustly applied” grade and, in our view, he fell into error in specifically excluding expertise from his consideration. Expertise is synonymous with skill, which is one of the factors to be taken into account in 44.5(3)(e). In our view he was plainly wrong to exclude that factor from his assessment of the hourly rate.”

15 thoughts on “Hourly rates: G v Kingston upon Hull City Council

  1. “Having considered all the relevant authourities referred to….”

    Shame they didn’t refer to the 2 on the point of (1) the Guidlines being useless as made up in the first place and (2) actual experience being a very relevant key in assessing grade and rate

    But then, if they’d known those 2, they’d never have run this otiose Appeal

    Reading between the lines, this is 1 silly solicitors firm having a battle with their RCJ, and making a bigger rod for their own back in the process. So glad I’m not their costs advisor hahaha!

  2. strikes me the retainer was wrong – her retainer should have allowed for her to be claimed as a more senior fee earner to take into account all of her experience

    Paturel v Marble Arch Services Ltd refers. I have scanned quickly the judgment but cannot see that it covered that point. I do however await to be corrected on that

    She would therefore have been Grade B for the retainer and the case itself would have justified such a fee earner

    the Claimant Sols they would then have been looking at Grade B for the starting point and an appropriate level of uplift on the same

  3. @abcde
    the f/e in Paturel was covered in the retainer, but had oodles of exp – the f/e in this case, had no more than that needed to qualify as a solicitor. BIG difference

  4. is that correct – i glanced judgement

    it read like that had been like an old articled clerk for many years before hand

    if the didnt have oodles of pre solicitor experience as you say then stupid point to run. The 1st instance decision was circa 20% above – what did they hope to achieve??

  5. yep – looked at it again. two years part time experience before the case started. Foolish decision and never grade B

  6. Who’s done the cost/benefit analysis on this? If the bill is £43,000 then allowing for, modestly, £5,000 worth of disbursements, it would be the equivalent of 190 or so hours at £168.00. Even if they got the decision overturned and increased the rate to, say, £180.00 per hour, it would only increase the bill by £2,280 plus VAT.

    I can’t imagine that costs of the appeal (including leading QC’s fees) would have been less than that.

  7. But even if the Court had exercised it’s discretion afresh to allow a rate in £170s as QC for the Claimant contended would that be enough to allow an Appellate Court to interfere bearing in mind the test per G v G? I don’t think so.

  8. The only reason for appealling would be to try and set a precedent for other cases. But since each case turns on its own merits, I cannot see what could have been usefully gained from this.

  9. More likely the latter. Whilst it’s easy to say on a lost case that it was destined to fail, I honestly cannot see how this could have been won.

    It would be interesting to see what advice they received on prospects before the hearing from Counsel or their Cost Draftsmen.

  10. sometimes you have to accept that you just have a bad day

    however what you do not do is appeal and risk making matters worse when there is no significant benefit in doing so

  11. Mr D, when did that ever stop you pursuing something not worth the cost/benefit ratio!!!

    Irrespective, you aren’t reading the whole Judgement. This wasn’t a one off issue. This was a firm trying badly and with very bad arguments trying to upstage their local RCJ on a rates point, so they could get higher rates than were being allowed for (a least one of ) their fee earners. There were a lot of cases backed up waiting the outcome of this Appeal

    abcde got the point earlier with the Paturel comments however. This was a doomed Appeal, but sometimes the only way to get through to these people, is to give them enough rope to hang themselves with

  12. reminds me of Weeks v King, when a certain NorthWest practice tried to ignore the then rate guidelines arguing their firm were “something special”

    that failed spectacularly too – the Judgement is hilarious !

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