NHS trust loses costs battle after arguing solicitors’ skills were not needed once counsel was instructed

The NHS Resolution, representing the Paying Party (Defendant) in a recent costs assessment tried a novel approach to the challenge of the Claimant’s hourly rates, arguing, as one point amongst a number of preliminary points, that the rates claimed ought to be reduced following instructions to leading and junior counsel contending, as set out in their points of dispute, that the Claimant’s solicitors did not “have to exercise any more skill, effort and specialised knowledge than that of an un-specialised solicitor”.

The Defendant’s case being that the Claimant’s solicitors did not display their skill in this particular case as the choice of counsel and the nature of the arguments being run had “rendered their own expertise unnecessary”.

Costs Judge Rowley in the matter R (Tafida Raqeeb by her Litigation friend, XX) and Barts Health NHS Trust – SC-2021-BTP-000737, found the Defendant’s suggestion that a case whose own weight clearly justified using expertise to pursue it, could be downgraded in the choice of the appropriate solicitor by that solicitor’s choice of external assistance, “remarkable”.

CJ Rowley commented that it was very much a team effort between solicitors and counsel in terms of communications with other parties, the drafting of documentation, the strategy and so on. There was no warrant, in the CJ’s view, to reduce the hourly rates simply because counsel was involved.

As the CJ added, ”the issue on assessment will be whether there was too much involvement of counsel” as was contended by the defendant. In the event the court considered there was too much involvement from counsel then either the solicitor’s charges or counsel’s fees would be reduced but that, as the CJ found, did “not mean that the hourly rates claimed by the solicitors should be reduced in any event”.

Costs Judge Rowley went on to allow the rates as claimed* having earlier considered that the work undertaken had been during a short period in 2019 and therefore was of the view that the guideline rates from 1 October 2021 were likely to be the preferred starting point in most cases. The Defendant had offered rates higher than the 2010 guidance but lower than the 2021 publication.

Reflecting the importance of this matter to the client and urgency, rates above guideline were allowed.

*A @ £315, B @ £275, C @ 235 and D @ £140.00 (Solicitors based in Manchester, National Band 1)