Birss: Recommended changes in 2023
The working group charged with introducing a new higher band to the guideline hourly rates (GHRs) for heavyweight commercial work is split over whether it is needed, it emerged yesterday.
However, the Civil Justice Council group agreed that counsel’s fees should be brought into the GHRs.
It stressed the need for more evidence to support setting the rates for both.
The ideas were first recommended in May 2023 as short-term improvements by the CJC costs group, chaired by Lord Justice Birss, who was then deputy head of civil justice and will shortly become Master of the Rolls.
It said the current top band was “too low and unrepresentative of the fees charged for top-flight commercial work”.
A working group chaired by Lord Justice Miles was assembled to take these two matters forward and in a consultation published this week, revealed that not all of its members were convinced of the need for a band for what it defined as “extremely complex, high-value commercial and corporate litigation” – and the rest needed the evidence to back it up.
It said: “A majority of the working group considers that if there is sufficient evidence that higher rates are in fact being charged and agreed for extremely complex work it should be reflected in a higher band and evidence about the level of cases which would qualify as falling within the proposed new category and the rates charged for such work.
“The group would therefore welcome evidence about charging rates for the relevant category of work…
“A minority of the group considers that the existing regime allows sufficiently for departures in exceptional cases and that there is no sufficient evidential basis for the introduction of a new higher band.
“The minority is also concerned that the introduction of a new higher rate would adversely affect access to justice.”
A preliminary evidence-gathering exercise involving judges “failed to provide adequate evidence to enable us to reach any provisional views about the rates at which the new higher band might be set”. This highlighted the importance of gathering further evidence through the consultation process.
However, there was unanimity that GHRs for counsel’s fees were “both possible and desirable”.
The consultation went on: “The group intends to collect as much contemporary evidence as it can as to the level of counsel’s fees charged across the civil litigation landscape reflecting seniority and work type.
“This material will inform the working group as to what an appropriate level of GHR may be.”
The working group also intends to draw on the results of the Bar Council’s annual working lives survey, which includes information on hourly-rate bands, practice area and seniority, while consulting on whether the survey’s practice groupings and seniority brackets are appropriate for GHR purposes, as well as whether any refinements – such as subdivision of KCs – are required.
“Any framework for counsel’s GHRs should recognise that brief fees and refreshers are commonly negotiated as lump sums/day rates which reflect features not captured by a simple ‘hours × rate’ model.
“Guideline rates may assist but will not necessarily dictate what is reasonable in the context of trial preparation and refreshers; views are invited on how this should be expressed and applied.”
Exercises to review the GHRs over the years have often foundered because of the difficulties in gathering evidence of what solicitors were charging.
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