The Total Cost of Legal Proceedings
A "ball park" figure for total barrister's fees up to and including the final hearing
I, like most barristers, 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 civil case or matter? If you are embarking on a claim in a civil court or other civil tribunal (or an application to the Land Registry which might, in due course, be referred to a tribunal) that could proceed all the way to a final hearing (trial), how can you get an idea of what the total cost, from beginning to end, might be?
Assuming that 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 fees may turn out to be more or less than any "ball park" figure
You might find that even if someone has said that they will oppose your claim, when it comes to it they do not file a notice of objection when an application to modify a restrictive covenant is made to the Lands Chamber by you, or, when an application is made to the Land Registry to register a right. In this case the Lands Chamber or Land Registry still has to consider the application but, if there is no objection, the process is much simpler and less costly and is normally successful.
If a claim for a specified amount of money is being made and no Defence document is filed by the deadline, then judgment can be entered "by default" using the court procedure without a judge even having to consider the matter (though the defendant can apply to a judge for judgment in default to be set aside if there is some irregularity - e.g. if the Claim Form was served at the wrong address and the defendant did not see it in time - or sometimes on other grounds).
Decision by Land Registry not to refer
If your case requires an application to the Land Registry which might, in due course, be referred to a tribunal, the Land Registry will not refer it to the tribunal if there is no objection from any other landowner affected, but will usually proceed to make the change applied for. In addition to that possibility the Land Registry has the power to give effect to an application even if there is an objection if the objection is considered groundless.
Successful or unsuccessful "application for directions" for the dismissal of an objection
In the type of a case where application is made direct to a court or other tribunal (i.e. not a referral case) it may be that there is some reason why, it can be argued, an objector is not entitled to object - for example because their property is not a property which has the benefit of the restrictive covenant they wish to object to the modification of. It might be possible to make an "application for directions" to bar the objection from proceeding to full consideration. The aim of such applications for directions is to shorten the overall process and so reduce the total costs to be incurred. (Note that in many courts an "application for directions" is simply called an "application" but the word "application" can also be used, particularly in specialist tribunals, to mean the entire case proceeding in the tribunal so I will use the phrase "application for directions" for clarity. ) If an objection or defence is barred and that is the only objection/defence then, although some costs will have been incurred on the application for directions itself, total costs may be reduced because the overall matter can then be dealt with thereafter as if there had been no opposition. Whether or not to make such an application for directions deserves careful consideration because, of course, if the application for directions is unsuccessful, and the matter still then has to proceed in the normal way, total costs will have been increased. Indeed particularly if there has to be a special hearing to decide the application for directions (more common in the courts than in other tribunals where most applications for directions are decided by a judge "on the papers" without there being a hearing) there is a risk that if you make an application for directions which is unsuccessful you might be ordered to pay the other side's costs incurred in successfully resisting the application for directions.
Sometimes there might be an interim application (by you, or by the other side) which does not have as its objective the shortening of the process but rather seeks some additional interim order from the tribunal to make the overall process fairer by, for example, preventing a party taking some detrimental action before the case has been decided at the final hearing. This is far more common in the courts than in other tribunals. In fact most specialist tribunals do not issue injunctions so if the main proceedings are in a specialist tribunal it might be necessary to start a court claim just for the purpose of making an application for an interim injunction. Making such an application for an interim injunction is bound to increase your total costs though if the injunction is granted the other side might be ordered to pay some or all of the costs you have incurred in making the application for the interim injunction.
How much advice you require as the case proceeds
During the course of the case, there are key points at which it is to be expected that further information/documents will emerge such as:
Immediately after both sides have set out their cases with legal particulars in documents called "statements of case"
After Disclosure of Documents - when each side provides the other with copies of documents it has
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 tribunal which normally awards costs to the winner, the award of full costs is unusual 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 I am carrying out a piece of drafting work or preparing to represent you in tribunal I 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. The stress of being in a legal dispute can cause people to use email less efficiently than they normally would, for example by combining too many disparate topics in an email (sometimes it is better to have separate threads) or by mixing up threads by replying to the wrong thread, and perhaps even 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 have a short delay while you check before replying rather than reply at length before checking and then sending 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 particular piece of work will (within reason) not affect the fee for that piece of work but fees for future work may be affected because when quoting fees for future work I will take account of my experience of how typically you use email.
When you initially ask me for a "ball park" figure for total costs I may, at that point, have limited experience of how efficient you typically are when using email - for example I may have provided a written Opinion immediately following a conference and site visit so that I 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 my subsequent experience of how you use email may mean that future fees quoted for each piece of work, once it becomes apparent how you use email, will be higher than they would have been.
Extra work caused by dealing with deadline difficulties
If you miss a tribunal-imposed deadline, it is likely that extra work (and therefore extra cost) will be involved in dealing with the consequences of that. For example it may be necessary to make an "application for directions" for an extension/relief from sanction.
Late postponement of the final hearing (trial)
At an early stage in the process of litigation the tribunal will set a date for the final hearing (trial). Unfortunately sometimes the date given is cancelled by the court and the hearing moved to a later date. This frequently happens in the civil courts. It is less common in specialist tribunals. 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 naturally everyone would like their case to be decided with the minimum of delay, but the parties should not suffer any significant increased cost. However, unfortunately where a final hearing date in a civil court is cancelled it is not uncommon for the parties to only be notified on the afternoon before. The underlying reason why this happens as frequently as it does, is cost-saving measures by the Ministry of Justice coupled with the fact that most judges in the civil courts are not specialists - as well as hearing civil cases many judges try criminal cases and family cases which take priority. The number of judges appointed has not kept pace with the increase in the number of cases, of all kinds, coming to the courts and consequently in any given week there are more court cases listed to be heard than there are judges available. In a certain proportion of civil and family cases the parties are able to agree a settlement, and in some criminal cases there may be a guilty plea, just before the hearing and the calculation is therefore that it is possible to "overbook" judges. This means that although a majority of court cases are heard on the appointed date a significant percentage of cases are, at the last minute, moved to a later date.
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 the final hearing is in two parts - a Brief Fee and Refresher Fees. The Brief Fee is the fee for preparation and representation on the first day, and there are Refresher Fees for the second and each subsequent day which the cases runs to. Most barristers are content to have a hearing date provisionally booked in their diary months ahead, with no obligation on either side, but as it gets closer to the hearing 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 final hearing. If, after that contractual commitment has been entered into (traditionally known as "delivery of the brief") the hearing is cancelled (whether permanently or because it is moved to a later date) traditionally 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 hearing 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 postponed hearing will be less because less further preparation is needed. However it is unfortunately the case that usually when a hearing 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 new date arrives the barrister will have forgotten most of the details of the case and will often have to spend almost as much time preparing as before. So the Brief Fee second time around may not be that much less than the Brief Fee paid the first time.
Although the great majority of fees are usually barristers fees it should be noted that there are some other costs the exact amount of which can vary.
When you start a case in a court or other tribunal a fee has to be paid to the tribunal office, and further fees may be payable as the case proceeds through the various stages. It depends on the tribunal but usually there are two main fees to be paid, one at the start, and one a few weeks before the final hearing, with perhaps some smaller fees being paid if, for example, before the final hearing there are one or more "applications for directions" to deal with some preliminary matter. Fees do rise from time to time, sometimes dramatically, and it is generally the fee rate in force at the time the fee becomes payable which determines its amount - not the rate in force when you started the case.
Sometimes a case needs an "expert witness", that is to say an expert such as an engineer or surveyor, who can give an opinion about some matter in issue such as the cause of a failure in a structure, or the state of a building, or who can carry out an accurate land survey. Often the specific permission of the tribunal is required before an expert can give evidence and the use of an expert is only allowed if the matter calls for an expert's view: if it is a matter within the ordinary experience and judgment of ordinary people without particular expertise then an expert witness will not be permitted.
The cost of an expert witnesses producing a report and subsequently giving evidence at the final hearing varies greatly depending of the field of expertise and the experience of the particular expert.
Important Note 1 The tribunal may, depending on the rules of the particular tribunal and other factors (such as what "without prejudice except as to costs" offers have been made and not accepted), order the losing side to pay some or all of the other side's legal costs, but the discussion above is purely about the costs incurred by a client and common reasons why they may be more or less than any "ballpark" figure given, not about the possibility of one party being ordered to pay the other party's costs.
Important Note 2 The above explanation assumes you do not use a solicitor at any stage. Sometimes developments in litigation mean that although you started out engaging a barrister direct you might need to engage a solicitor part way through the litigation.
Important Note 3 Once a case has proceed to trial or other final hearing, that is usually the end but, 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. If you are awarded costs "to be assessed" then there will be costs of the assessment process if the exact amount of allowable costs cannot be agreed between the parties, and sometimes there is an appeal (or further appeal). In most tribunals 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.
This page was lasted updated in October 2023 Disclaimer