Costs - The Total Cost of Legal Proceedings


A "ball park" figure for total barrister's fees up to trial


A barrister will normally quote a fixed fee before carrying out each piece of work, so you know in advance what that piece of work will cost, but what about the total cost of a case or matter? If you are embarking on a court or tribunal claim, which may proceed all the way to trial, how can you get an idea of what the total cost, from beginning to end, might be?

If you are not using a solicitor then usually the great majority of fees will be barrister's fees. Once you have an initial written Opinion about your case from a barrister, if that Opinion advises you to start legal proceedings (or if legal proceedings have already started), you can ask the barrister for a "ball park figure" of likely total costs for the case which the barrister should, in most cases, based on the information gathered when providing the written Opinion, be able to give from their experience of cases broadly similar to yours, but, for the reasons explained below, that can only be a "ball park figure" and cannot be equated with an "estimate" still less with a "quote".


Some reasons why the "ball park" figure for barrister's fees may be exceeded

Voluntary Procedural Detours

It should be possible to identify, at the outset, what barrister work, in terms of drafting documents, and representation at hearings, will be required if the case proceeds to trial without any detours, but sometimes "interim applications" are made part way through a case to deal with some matter which has arisen. You have a choice about whether to make an application. Sometimes your barrister may advise that, as matters have turned out, it is essential. Sometimes the decision is more finally balanced with pros and cons. See here for an example. If an interim application is to be made extra barrister work will be needed to draft the papers for the interim application and for representation at the interim application hearing, and there may be extra court/tribunal fees. It should also be borne in mind that if you make an interim application and the application is not granted you will normally be ordered to pay the legal costs which the other side has incurred in resisting your application even if you go on to win at the eventual trial and are awarded most of the rest of your legal costs and, because it is generally more difficult to predict the outcome of a particular application than it is to predict the overall outcome of the case, there is always a significant risk that on the way to winning your case overall you might lose a particular application.    


Involuntary Procedural Detours

The other party may make an interim application and, if so, costs will be incurred in responding to it both in drafting papers in response and for representation at the interim application hearing. If you are advised that the other side's interim application would be likely to succeed then it is normally best not to oppose it but, because it is generally more difficult to predict the outcome of a particular application than it is to predict the overall outcome of the case, there is always a significant risk that an interim application you oppose, thinking it will fail, does in fact succeed with the result that you are ordered to pay the legal costs which the other side has incurred in making their successful interim application. 


"Unnecessary" correspondence

In the steps leading up to the trial the parties send various formal documents to each other as directed by the court/tribunal. Although the parties are in opposition they are expected to act efficiently and reasonably, providing legible documents which set out clearly the information required, and not creating unnecessary procedural wrangles or trying to argue by correspondence matters which are to be argued at the trial. So, formal documents aside, normally any correspondence by email or letter will be succinct

But if your opponent does not understand this (or does not care) you may find that you are on the receiving end of long and repetitive correspondence as the case proceeds. In particular, before the reforms to civil procedure in 1999 it was common for solicitors to send "unnecessary" correspondence essentially trying to argue that the other side was bound to lose and should give up. Under the new Civil Procedure Rules this should not happen but unfortunately it still does sometimes happen particularly in County Court cases. Of course solicitors who send such correspondence would argue that it is not unnecessary because it is part of a strategy to get the other side to give up or, at least, accept a settlement offer. Usually such unnecessary correspondence can be replied to quite succinctly but occasionally there may be some procedural point which needs to be answered, and, of course, there is a cost (which cannot be predicted at the outset of the case) if you ask your barrister to read the correspondence to decide whether a substantive reply is needed or not even if, in the end, the assessment is that no reply, or a very succinct reply, is needed. 

Sometimes clients are reluctant to let such correspondence pass without giving a detailed reply - they don't want to just keep their powder dry but want all the points in the letter they have received to be answered in a reply drafted by their barrister or, at least, if their barrister advises against that course of action they would like their barrister to explain, in some detail, why. This will, of course, increase costs.  


How much advice you require when doing administrative work

During the course of the case, there are key points at which it is to be expected that further information/documents will emerge as follows:

  • At close of pleadings - when both sides have set out their cases with legal particulars
  • After Disclosure of Documents - when each side provides the other with copies of its documents
  • After exchange of witness statements - when the other side's detailed witness evidence is known
and generally a further written Opinion will be needed at each of the above stages. 

It is also possible that some new information may come to light at other times, or some question or "angle" might occur to you at other times. A barrister who is experienced in a particular area of law will know from experience which "leads" are worth spending time and money on and which are likely to lead nowhere particularly significant, and the barrister will have in mind that even if the client wins and even if the matter is in a court/tribunal which normally awards costs to the winner, only proportionate costs are awarded which usually means that the cost of following less important leads will never be recovered by the client. But ultimately it is the client's choice whether to pay further fees for the barrister to look in detail at, and advise on, any particular new point. Clients insisting on such points being looked into is a common reason for total fees ending up being substantially more than any "ballpark" indication given at the outset.  
 

How efficient you are at using email

When your barrister is carrying out a piece of drafting work or preparing to represent you in court/tribunal they will be sending you emails with questions for you to answer. To an extent how many emails need to be exchanged depends on how complex the case is and how many loose ends there are, but how efficient you are at using email can also influence how much time is spent on email communication. If, for example, what you write is unclear, and you reply to a request for clarification with an answer which not only fails to provide the requested clarification but talks about some completely different matter, much more time than necessary can be spent on emails. Other inefficient ways of using email are: combining too many disparate topics on an email - sometimes it is better to have separate threads - mixing up threads by replying to the wrong thread, and sending multiple repetitive emails. Speed of reply can also be a factor: replying to a request for clarification quickly is good but if you need to check something it is usually better to check it before replying rather than reply at length before checking and then send a further lengthy email after checking. Usually the fee for each individual piece of work is a fixed fee quoted before the work is started, so the number of emails exchanged when doing that piece of work will (within reason) not affect the fee for that piece of work but fees for future work may be affected because the fixed fees quoted for future pieces of work will be based on an estimate of how long the work might be expected to take and if it has become apparent from past work that a certain client uses email in a particularly inefficient way, that will be a factor in the estimate of how long future items of work might take and hence increase the fixed fees to be quoted for each piece of future work. When you initially ask a barrister for a "ball park" figure for total costs the barrister may, at that point, have limited experience of how efficient you typically are when using email - for example the barrister may have provided a written Opinion immediately following a conference so that they will have obtained most information needed for the Opinion from you at the conference and would not have needed, at that stage, to ask many questions by email. But subsequent experience of using email may mean that future fees agreed for each piece of work, once it becomes apparent how you use email, will be higher than they would have been. Sometimes the reverse is the case: from limited experience of exchanging emails with you the barrister might initially expect email communication to be quite time-consuming and give a "ball park figure" for possible overall cost accordingly, but subsequent experience may show that email communication is in fact much more straightforward and efficient than expected, leading to a downward revision of expected time for future work.

Extra work caused by dealing with deadline difficulties 

If you miss a court/tribunal imposed deadline, it is likely that extra work (and therefore extra cost) will be involved in dealing with the consequences of that such as making an interim application for an extension/relief from sanction.

Late postponement of trial 

At an early stage in the process of litigation the court/tribunal will set a date for the trial. Unfortunately sometimes the date given is cancelled by the court/tribunal and the hearing moved to a later date. If the hearing date is still some months away at the time the parties are notified that it has been moved, the parties will be disappointed (because everyone wants their case to be decided with the minimum of delay) but should not suffer any significant increased cost. However, unfortunately it is not uncommon for the parties to only be notified on the afternoon before the trial is due to start that it has been postponed. The underlying reason why this happens as frequently as it does, is cost-saving measures by the Ministry of Justice. The number of judges appointed has not kept pace with the increase in the number of cases coming to court/tribunal and consequently in any given week there are more cases listed to be heard than there are judges available. In a certain proportion of cases the parties are able to agree a settlement just before the trial and the calculation is therefore that it is possible to "overbook" judges. This means that although most cases are heard on the appointed date a significant percentage of cases are, at the last minute, moved to a later date. The percentage of cases affected varies between different courts and tribunals and from time to time, and depends to a degree on the kind of case - some types of case are given a lower priority - but it is a significant percentage.
 
When a hearing date is moved at the last minute in this way it means extra costs for the parties. Generally the fee for a barrister to represent a client at a trial or other final hearing is in two parts - a Brief Fee and Refresher Fees. The Brief Fee is the fee for preparation for the first day of the trial and appearing on the first day, and there are Refresher Fees for the second and subsequent days. Most barristers are content to have a trial date provisionally booked in their diary months ahead, with no obligation on either side, but as it gets closer to the trial date, the barrister will want a contractual commitment from the client firstly because any date booked is a date on which the barrister is potentially turning away other work and secondly because the barrister will need time to prepare for the trial. If, after that contractual commitment has been entered into (traditionally known as "delivery of the brief") the trial is cancelled (whether permanently or because it is moved to a later date) the Brief Fee is not refundable. This is not just because the time has been booked but also because preparation work will have been done (indeed sometimes the reason why a trial does not take place is because the barrister is able to negotiate a settlement and therefore may actually have carried out more work before the first day than they expected to do). 

It might be thought that the fact that much preparation work has been done means that the further Brief Fee for preparation for, and representation on the first day of, the new trial date will be less because less preparation is needed. However it is unfortunately the case that usually when a trial date is postponed it is postponed not to the next day or next week but to a date many months away so that when the next date arrives the barrister will have forgotten the details of the case and will often have to spend almost as much time preparing as before. So the negotiated Brief Fee second time around may not be that much less than the Brief Fee paid the first time.


Other Fees

Although the great majority of fees are usually barristers fees, it should be noted that there will be some other costs as explained below.

Court/Tribunal fees

When you start a case in a court or tribunal a fee has to be paid to the court/tribunal office, and further fees may be payable as the case proceeds through the various stages. It depends on the court or tribunal but usually there are two main fees to be paid, one at the start, and one a few months before the trial, with perhaps some smaller fees being paid if, for example, before the trial there are one or more mini-hearing to deal with some preliminary matter. You can get some idea of fees here (or here for the Supreme Court) but often the best way of finding out is to ask at the court/tribunal office. As fees rise, in a effort to mitigate the effect of increased fees on those who cannot afford them, frequently exceptions are created by the rules so that a lower fee is payable for particular types of case (this is separate from, and additional to, any scheme of fee reduction based on actual ability to pay; where the fees for certain types of case are thought on average to disproportionately affect less well off people the fee everyone is charged for that type of case may be less). The definition in the Fees Order of what cases qualify for the lower fee is often quite technical and, consequently, in practice the court/tribunal office will have a rule of thumb for when they will accept that the exception applies, so the best way of establishing what fees will in practice be payable, for any particular type of case, is to ask the court/tribunal office.


DCS

Once legal proceedings have started you will need to use the Caselines Digital Case System (DCS) to store documents and produce indexed and paginated bundles of documents when necessary for hearings. Caselines generally charge a fee based on the maximum number of pages stored at any one time and if you are careful to avoid duplication most cases do not involve more than 1,000 pages and DCS fees are unlikely to exceed £350.


Investigators

If there are witnesses (other than you) who can give evidence at trial then often a private investigator will be engaged to take statements and/or trace the witnesses. The charges of an investigator for taking statements once a witness has been located are unlikely to more than a relatively small percentage of the total barrister's fees for advice, drafting documents, and representation at hearings in the case. The cost of tracing witnesses, where that is necessary, can vary greatly but, of course, you have the choice of how extensive (and therefore how costly) a search you want your chosen investigator to carry out to try to trace any particular witness taking into account how important that witness' evidence is likely to be for the case. 


Costs after the trial or other final hearing

Note 1 Normally (though not always) if you win a case you will be awarded costs. But before the court/tribunal can order your opponent to pay you those costs the court/tribunal has to assess the precise amount which is to be paid to you as not all costs claimed will be allowed in full. The court/tribunal will not award the full amount claimed if it considers it unreasonably high for the case and there will be specific rules about what kinds of items can be claimed. Traditionally the assessment of costs took place a few months after a case was concluded and the assessment process was like another mini-trial with each side represented by specialist costs solicitors and ending up with arguments as to who should pay the further costs of the assessment of costs process itself!

Unfortunately this still sometimes happens, but you can normally avoid these extra costs by taking a pragmatic approach. If you just claim for disbursements, which are the major costs, and do not try to claim for small items such as phone calls, paper and printer ink, a short and simple Statement of Costs can be drawn up, supported by receipts, and if it is done in this way the judge may well be prepared to carry out what is known as a summary assessment, which only takes about 10 minutes and is carried out immediately after the judge makes the order awarding costs. This means that there are no extra costs of assessing costs.

Note 2 If you lose a case (or possibly if you partly win a case but do less well than than an offer previously made by the other side) you may be ordered to pay the costs which the other side has incurred. However if the court/tribunal assesses that the other side's total costs to be unreasonable or out of proportion to the matter at stake it may not order you to pay the full amount. Often the judge will assess costs at the end of the trial or other final hearing but if the trial judge orders assessment of costs to take place later then there will be the additional costs of the assessment itself. 
  
Note 3 The legal costs which the other side incur (which you might be ordered to pay) will not necessarily be at a similar level to your own legal costs. In particular if the other side engage solicitors, as well as a barrister, then their costs may well be more than double your own costs of using a barrister alone. In some cases the court will impose a cap on the costs which each side can claim or the court may require the other side to produce a budget so that any claim for costs at the end of the case can be compared with the budget and any extra claimed over the budget can be required to be justified. However if a cap or budget is imposed the amount of the budget or cap will not be known until some time after proceedings have commenced.

Note 4 Once a case has proceed to trial or other final hearing, that is usually the end. However if you win and are awarded a sum of money but your opponent does not pay then there may be extra costs involved in enforcing payment. Also sometimes there is an appeal (or further appeal). A party can only appeal with permission and in most cases permission is not granted, but if permission to appeal is granted then the appeal will incur extra costs. 

In an appeal there are not usually any witnesses so there are no investigator costs. However (in addition to barrister's fees) there may be transcription fees. Unofficial recording equipment is not permitted to be used at hearings so to obtain a transcript of a hearing, or parts of a hearing, it is necessary to engage a transcription company after the event to transcribe all or part of the proceedings from the official audio recording - the recording is released by the court/tribunal direct to an approved transcription company. See here for information about the costs of approved transcription companies. Many companies offer a fast turnaround for an additional fee but bear in mind that the transcription of the part of the proceedings which consists of the judge's judgment has to be checked by the judge before it is released to you and the transcription company has no control over how long that might take - if fact where a transcript is required for the purposes of an appeal it is common for the transcription of judgment not to be available before the deadline for appealing a decision so that the grounds of an appeal, if there is an appeal, have to be drafted based on notes taken at the time of what the judge said rather than on the official transcript which may only be available later.    
     

This page was lasted updated in October 2019        Disclaimer