Change of Counsel was not a significant development in an action that warranted the changing of a costs budget; so held Richard Millett QC when considering an application by the Defendant to increase a budget that had been approved in October 2015 shortly before a 10 day trial.
The matter involved a claim of more than £15 million representing the value of shares and assets allegedly held on the Claimant’s behalf.
Budgets had been approved by the court in respect of Counsel’s fees with Leading Counsel’s brief fee allowed at £100,000.00 with £49,000.00 for Junior Counsel; at the time of the approved budget Leading Counsel had not yet been retained. In September 2016, around the time of the exchange of witness statements, there was a change of Junior Counsel for the Defendant however there was no revision of the budget. The newly instructed junior returned the brief citing an increased workload on another Counsel; Leading Counsel was instructed in mid-November 2016; the Defendant notified the Claimant that there had been a change of Counsel and sought to revise the budget. The day before the pre-trial review the Defendant made its application, which was heard as part of the hearing. The Defendant sought to revise the budget for the Trial seeking £172,000.00 for Leading Counsel with £69,000.00 for the junior.
Referring to Elvanite Full Circle Ltd v AMEC Earth and Environmental (UK) Ltd  EWHC 1643 (TCC) the Court found that the change of Counsel had not been a significant development; the Costs budget of £100,000.00 for Leading Counsel had been made in October 2015; it had been the Defendant’s choice not to retain Leading Counsel at that point, or later as the litigation continued. In relation to Junior Counsel no explanation was provided as to why Counsel could not conduct the Trial for the original budget. In essence the Defendant was seeking a very late upwards revision of the budget. Junior Counsel’s return of the brief was the only element that had not been the Defendant’s choice; it was entirely the Defendant’s choice to instruct Counsel for more than the existing budget. Whilst not disputing the rates sought by Counsel were reasonable however for the same reason that the changes did not amount to a significant development in the litigation, they did not amount to good reason. A Party was free to instruct Counsel at the last minute, but it did so at its own risk and could not be surprised if it was not then allowed to alter its costs budget.
The writer recalls many instances where, on detailed assessment, brief fees were significantly reduced by reason of the brief having been, in the view of the Costs Judge, delivered prematurely. It might be advisable for Solicitors to approach friendly chambers for realistic “estimates” of likely fees before budgets are submitted in the event there is a possibility that Leader may be instructed for a lengthy trial.