The Senior Costs Judge has warned lawyers that the guideline hourly rates may not change unless they start providing the group reviewing them with more evidence.
Andrew Gordon-Saker said the Civil Justice Council working party has received “useful data” but not that much from the legal profession about assessments or agreements they have been party to over the past 18 months.
He said: “I think that it is in everybody’s interests that we are able to recommend rates which are capable of being accepted, not only by the Master of the Rolls, but also by the profession and those who will be affected by them.
“The alternative is that we are left with the 2010 rates and wide inconsistencies of approach as to their continuing relevance and how they should be applied.”
Master Gordon-Saker said the working group was happy to receive data in relation to assessments/agreements between April 2019 and August 2020 in any format, whether raw or refined.
“For assessments/agreements in the current three-month period, there is a specific form, but again we are happy to receive any evidence you may have in any format. In analysing this data, we have the very great benefit of assistance by Professor Paul Fenn and Professor Neil Rickman.”
The pair have been the go-to academics to crunch the data behind fixed costs and other costs reforms for many years.
Meanwhile, lawyers are reporting that litigators are already using last month’s ruling in PLK on Court of Protection cases – in which costs officers were ordered to allow rates of 20% above the GHR – to argue for a similar approach in civil cases.
Jon Lord, a costs lawyer working at Weightmans, tweeted last week: “Between parties detailed assessment coming up. Seems receiving parties are already trying to rely on the PLK judgment on hourly rates.”
Writing afterwards, he reported: “Judge took into account that GHRs not changed for 10 years in reaching his own conclusion as to reasonable rates. PLK sidestepped as not being binding. In essence, same as before.”
Asked about this trend, Master Gordon-Saker told by Litigation Futures: “As Master Whalan made clear, the approach that he took in PLK will ultimately be subject to any decisions made by the Master of the Rolls on new guideline rates.
“It is important therefore that the recommendations made to him about those rates are based on the best evidence that can be obtained from the profession.”
Claire Green, chair of the Association of Costs Lawyers, said it was no surprise that litigators were citing the PLK decision in an effort to recover rates in excess of the GHR.
“The fact that the GHR haven’t been updated for a decade is why Mr Justice Stewart and his Civil Justice Council working group have been charged with reviewing them.
“It is worth bearing in mind, however, that a great deal of preparatory work went into the PLK case, with contributions made by multiple law firms to build the evidence base to support the argument.
“The reality is that this activity is already being undertaken by the working group and it seems likely that costs judges will be reluctant to accept a similar argument in relation to non-Court of Protection work before the group reports and the Master of the Rolls makes his final decision. We would urge law firms to engage with the group and provide the data it is seeking.”
Ms Green added that costs judges were used to taking into account the 10 years that have elapsed when coming to a decision on hourly rates.
“The judge in PLK was also influenced by the risk of practitioners leaving the field if the GHR were not increased and that might be a harder argument to run for general civil litigation.”
Last week, a costs judge ruled that the GHR were “barely even a starting point” in high-value litigation conducted by City law firms.
For any queries about the CJC review, including how to submit evidence, email CJC.GHR@judiciary.uk