Inter Fee Earner Discussions | Are They Recoverable?

Fuseon Ltd, R (On the Application Of) v Shinners

The contentious issue of inter fee earner communication is a common feature in many a detailed assessment.

Most paying parties argue that they are not allowable under any circumstances and, historically, they are usually disallowed, irrespective of whether the time spent in fact led to an ultimate saving in costs by enabling effective delegation of work to lower grade fee earners.

The two decisions often cited by paying parties are the criminal case of R v Sandu [1984] Costs LR (Core) 451 and the Court of Protection case of Re Radcliffe [2004] EWHC 90039 (Costs).

In R v Sandu, Mustill J said…

“There must be many cases where, once the case has been allocated to a fee earner of the appropriate grade he or she can be allowed to carry on the work unaided, without any need for intervention by someone more senior. On the other hand, there may equally be cases where, if and when the matter is in the hands of someone who could ordinarily be considered competent to deal with it, there might be an unexpected turn of events where the senior solicitor’s extra experience and weight would be an essential reinforcement. Unqualified rules cannot be laid down …

“The Determining Officer can reasonably expect the senior solicitor to provide an explanation of the reasons why the nature of the case made his participation necessary; and of the occasions, duration and circumstances of such participation. Without such particulars, the Determining Officer might well consider that where an allowance has been claimed for a fee earner of a particular grade, there was no case made out for a further allowance in respect of someone more senior.”

In Re Radcliffe, Master O’Hare followed Sandu and determined that…

“In my judgment it is always, or almost always, inappropriate for a claim to be made for letters sent by for one fee earner to another fee earner in the same firm. The allocation of tasks between them is part of the irrecoverable overhead of the firm. If the senior fee earner needs to be informed of some aspect of a matter he should simply read the relevant attendance notes when the file is sent to him.

“In my judgment it is sometimes, but only rarely, appropriate for claims for costs to be made in respect of discussions between fee earners.”

A common point of dispute goes along the lines of this one, from the TMC archives…

“There are items within the Bill of Costs that appear to be of a supervisory nature. The Defendants refer to the case of R v Sandhu and the matter of Leighanne Radcliffe and that supervision is not recoverable between the parties. The Defendants request that any items found to be of this nature are disallowed in full.”

Some respite appeared to have come in 2016 with the decision of Laing J in TUI UK Ltd v Tickell & Others [2016] EWHC 2741 (QB), an appeal from an assessment carried out by Master Haworth in the Senior Courts Costs Office.

The action involved 205 claimants who had suffered illness on a cruise and received damages from around £500.00 to £1,500.00.

In the course of his assessment the Master had allowed approximately 144 hours of inter fee earner discussions between the parties.

In rejecting an appeal against such an allowance, Laing J said…

“I agree with the Master that, in principle, if, as here, much of the work on files was being done by paralegals under the supervision of legal executives, it was necessary, from time to time, to have discussions between fee earners, specifically supervising solicitors, including partners. In the course of this short ruling the Master referred twice, correctly, to the test he had to apply”

In practice, this decision has not had the broad application that receiving parties might have hoped and they have continued to have difficulty recovering costs of inter fee earner discussions on detailed assessment.

However, this might now have changed.

In January 2020 we reported on the decision of Lane J in Fuseon Ltd v Senior Courts Costs Office [2020] EWHC 126 (Admin), a second appeal against the disallowance of London rates following the bringing of a successful private prosecution.

The appeal was successful and the case was remitted to the senior costs judge, Master Gordon-Saker for a full redetermination.

In the course of such redetermination in Fuseon Ltd, R (On the Application Of) v Shinners [2020] EWHC B18 (Costs), the Master made several decisions and notably addressed the issue of inter fee earner discussions. Allowing these, he said…

“Reasonable time spent in inter-fee discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and the delegate is usually now considered to be recoverable. Insofar as the Legal Aid Agency’s Criminal Costs Assessment Manual, as quoted by Mr FitzGerald-Morris, may suggest otherwise, in my view it does not reflect current practice and is wrong.”

Although of no authoritative value, the views of the senior costs judge are persuasive and will hopefully lead to a more sensible and pragmatic approach to the recovery of inter fee earner communication, at least insofar as it is shown to have led to an overall saving in costs.

Link to Judgment