The Total Cost of Legal Proceedings


Introduction


You agree a fixed fee before a barrister carries 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 the total cost, from beginning to end?

You can ask the barrister (or, usually, the barrister's clerk who negotiates fees) to estimate how much each piece of future barrister work, which your case may need, might cost. Usually it is possible to give an approximate cost for each individual piece of work which is expected to be needed. But, for the reasons explained below, just adding these up does not give you the total cost of the case:

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. For example, for those cases, such as appeals and judicial/statutory reviews, where permission is required to proceed, a fee may be payable upon lodging the application for permission, and a further fee may be payable to proceed if permission is granted. In most cases a further fee will be payable when a date is allocated for the trial/final hearing. It would be unusual for the total court/tribunal fees for a case to be more than a relatively small percentage of the total barrister's fees for advice, drafting documents, and representation at hearings in the case, but if you think that the level of court/tribunal fees might be a significant factor in your decision whether or not to proceed with a case, you will want to establish what court/tribunal fees would be payable. You can get some idea here but the best way of finding out is to ask at the court/tribunal office. The Ministry of Justice frequently increases fees and also, in a effort to mitigate the effect of increased fees on those who cannot afford them, frequently creates exceptions so that a lower fee is payable for particular types of case. 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 is to ask the court/tribunal office.

Transcription fees

Unofficial recording equipment is not permitted to be used at hearings. To obtain a transcript of proceedings (e.g. if there is an appeal) 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 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 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.)    

Expert Witnesses

For some types of case you may need an expert witness, such as a surveyor. The fees depend on the type of expert witness and whether you are asking the expert simply to produce a report, and answer questions in writing, or whether the expert needs to attend the court/tribunal to answer further questions. Expert witnesses are not required in all cases and, even in cases where an expert witness is required, and even if the expert needs to attend a hearing (as well as provide a report) it would be unusual for the total expert witness fees to be more than a relatively small percentage of the total barrister's fees for advice, drafting documents, and representation at hearings in the case, but if you think that the level of expert witness fees might be a significant factor in your decision whether or not to proceed with a case, you will want to contact expert witnesses in the relevant field in advance to get a broad indication of the level of likely fees.

Caselines

Once legal proceedings have started you will need to use a system such as Caselines to store key documents and produce indexed and paginated bundles of documents when necessary. Caselines fees can be found on their website www.caselines.co.uk

Barrister's Fees

Barristers fees will normally constitute at least 75% of total fees. You can ask the barrister (or, usually, the barrister's clerk who negotiates fees) to estimate how much each piece of future barrister work, which your case may need, might cost. Usually it is possible to give an approximate cost for each individual piece of work. However this does not take account of any "procedural detours". 
 

Voluntary Procedural Detours

Although it should be possible to identify what barrister work, in terms of drafting documents, and representation at hearings, will be required if the case proceeds to trial without any detours, sometimes "applications" are made part way through a case to deal with some matter which has arisen. See here for an example. If this happens extra barrister work will be needed to draft the papers for the application and for representation at the application hearing, and there may be extra court/tribunal fees.

Also, as a case proceeds, new information may come to light. 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 any particular new point, so this is a further reason why the total barrister's fees of the case may turn out to be more than simply the total of the individual items of work which can be identified at the outset.     

Involuntary Procedural Detours

In the steps leading up to the trial or other final hearing 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. 

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. 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 judgement is that no reply is needed. In addition another party may make an application (see above for an explanation of what an application is) and, if so, costs will be incurred in responding to it.

How much advice you require about administrative matters

There is work which you will be doing throughout the case (such as searching for, scanning in, and listing, all relevant documents). This usually involves more of your time than your money (although you might choose to pay a high street print shop to do the scanning) but occasionally you may need to ask the barrister for advice as you carry out this work (for example you might need to ask the barrister's opinion on whether a particular document is relevant and should be included in your disclosure list if you find it hard to decide). How much advice you need (and therefore the cost) is difficult to predict because it depends party on how easy you find it to carry out this sort of work and partly on the nature of the case (e.g. on the number of documents found whose relevance is not clear-cut).

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 application to the court 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 or other final hearing. Unfortunately sometimes the date given is cancelled by the court/tribunal and the trial moved to a later date. If the trial 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 common for the parties to only be notified on the afternoon before the trial is due to start that a trial 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 trial 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 trial 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 that 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.

Costs of Assessing Costs

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. 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 lawyers 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 explained above, and do not try to claim for small items such as phone calls, 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.

Conclusion

If you are reasonably efficient in carrying out the administrative tasks necessary in a case and, on the whole, you accept your barrister's advice as to what new leads are and are not worth following up and looking into in detail, and providing there are no procedural detours initiated by the other side, and you take a pragmatic approach to the costs assessment process, and providing the trial is not postponed at the last minute, the total you pay in barrister fees should not be too much more than the sum of the individual pieces of work identified at the outset.   

Notes


Note 1 Once a case has proceed to trial, 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. 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. 

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 trial judge will assess costs at the end of the trial but if the trial judge orders assessment of costs to take place later then there will be the additional costs of assessment.   

Note 3 The legal costs which the other side incur (which you might be ordered to pay) will not necessarily be at the same level as 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.       

     

This page was lasted updated in March 2017        Disclaimer