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Fenton: Does your retainer simply allow guideline rates? You may miss out if so

Posted by Adam Fenton of Litigation Futures sponsors MRN Solicitors [2]

The 2014 guideline hourly rates were released earlier this month to less fanfare than Manchester United’s latest signing (hint – there isn’t one). Given that many of us had been waiting three years for the announcement, why the anti-climax?

The simple answer is, the guideline rates themselves have not changed due to Lord Dyson’s conclusion [3] that there was insufficient evidence on which to base any movement. As such there have been no sensationalist newspaper articles about ‘greedy lawyers’ taking more money out of client’s pockets, nor has there been an eruption of office managers lamenting the impossible task of running a case profitably at £75.36 per hour. In a break from the legal revolution, the status quo has been maintained.

Despite this somewhat unexciting decision, there are some changes which have generally been well received. From the 1 October 2014, Fellows of CILEx with in excess of eight years’ post-qualification experience will be eligible for grade A rates, surely a fair reflection of the expertise such fee-earners bring to a case.

Qualified costs lawyers are also explicitly eligible to recover up to grade B rates from the same date, reflecting the complexity and nature of the work they carry out following the reforms.

Before filing the latest guideline rates away as non-news, however, I think it is worth considering Lord Dyson’s following comment: “There should be greater flexibility (for judges determining appropriate rates) in detailed assessments than would ordinarily be shown in summary assessments.”

The principle behind this is long established – the guideline rates are and have always been exactly that, guidelines, and were primarily intended for use in summary assessment. By directly designating that flexibility should be shown by judges, however, Lord Dyson is opening the door to arguments for higher (and even, dare I say it, lower) than guideline rates being awarded in appropriate circumstances.

This reiterates the importance of both your retainer and how your costs representatives protect your interests in costs litigation.

Does your retainer simply allow guideline rates? If so, you may be limiting your recovery should that fairly routine noise-induced hearing loss case develop into a complicated, disputed and involved matter requiring the attention of your most experienced fee-earners.

Equally, if your retainer does allow for higher than guideline rates, are you confident that your costs representatives are doing all they can to push for recovery of a rate in excess of guidelines (circumstance/complexity permitting)?

While, in my opinion, a judge remains likely to adopt guideline rates in most cases, every judge is different. Lord Dyson’s comment that flexibility in deviating from the guideline rates in appropriate circumstance should be shown, confirms that reciprocal ambition should be shown by your cost representatives.

Happy hunting.