A costs judge has slashed the £110,000 brief fee sought by a claimant when his case settled nearly three weeks ahead of trial and before the QC had started preparing for it.
Deputy Master Campbell ordered that Robert Weir QC should only be paid £27,000 (plus VAT), instead of the full amount, recognising a degree of lost opportunity.
It was the only outstanding point in the detailed assessment of former Saracens rugby player Richard Barrington’s budgeted claim over a head injury he suffered.
A 13-day trial was due to begin on 15 March 2021 but the case settled on 24 February. The dispute over the rest of Mr Barrington’s £877,000 legal bill has also been settled.
Mr Weir was booked for the trial in November 2019, reserving the trial days and 16 preparation days, but the brief was only sent to him on 22 February 2021.
The claimant accepted that there was good reason to depart from the budget and there would be an “abatement” to the fee, noting that – after the case was removed from his diary on 1 March – Mr Weir was able to take on six consultations and two short hearings.
While the defendants argued that no brief fee should be payable, or in the alternative at most half, the claimant said the reduction should be no more than 25%.
Deputy Master Campbell said that though it was a “difficult and complex case”, it was not “strikingly more so… than other tragic and life-changing cases which come before the courts involving personal injury and clinical negligence”.
Further, Mr Weir “had not come into the case late”, having been involved earlier and in the mediation – for which he was paid separately.
“All these factors militate against a brief fee for a leader of £110,000 plus VAT as being one that can be justified between the parties,” the judge said.
“In so far as an hourly rate has been used, it is too high and reflects a sum for pre-eminence.”
He decided that a brief fee of £75,000 would have been reasonable as a starting point and that the suggested 25% abatement was insufficient given how soon after the brief’s delivery the case settled.
Deputy Master Campbell said a 50% abatement was appropriate, less a further £10,000 to reflect the other work Mr Weir took on instead. This meant he allowed a brief fee of £27,500 plus VAT.
The judge rejected the defendants’ criticism of the claimant for not warning them about the delivery of the brief; they said they would have arranged the mediation earlier had they known.
He said this impermissibly introduced hindsight, while the defendants – represented by Plexus Law – could have asked the claimant’s solicitors, Irwin Mitchell, when they were delivering it.
“If, as was the case, the right question was not asked, I do not follow how it can be the fault of the claimant if the defendants remained in ignorance of the answer until it was mentioned on 1 March, after the case had settled.”
Further, although the defendants had staged their counsel’s fee, there was no obligation on the claimant to do the same.
Deputy Master Campbell also ordered the defendants to pay the costs of the detailed assessment in relation to this point.