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 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 in the courts, 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.
Successful interim application to dismiss the objection
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. You may be able to make an interim application to bar their objection from being considered and, if they are the only objector and your interim application is successful then, although some costs will have been incurred on the interim application, overall costs may have been saved because the application can then be dealt with thereafter as if there had been no opposition. But, of course, if the interim application is unsuccessful and the matter still then has to proceed in the normal way, costs will have been increased (especially if you are ordered to pay the other side's costs of the interim application, which can sometimes happen especially if there had to be a hearing specifically to consider the interim application, rather than each side making written submissions and the judge deciding the point "on the papers")
Other Interim Applications
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 or court to make the overall process fairer by, for example, preventing a party taking some detrimental action before the case has been decided at trial, or by requiring a party to search for and disclose particular documents. Such applications are far more common in the courts than in tribunals. See here for an example. In this case the interim Application is bound to increase your costs - unless the interim application is decided in your favour and the other side is ordered to pay all your costs of the interim application.
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 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 quoted 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 each future piece of 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. This rarely happens in tribunals but frequently happens in the courts. 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 in the County Court in particular, has not kept pace with the increase in the number of cases coming to court 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 a majority of 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 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.
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 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 interim applications to deal with some preliminary matter. Fees do rise from time to time, sometimes dramatically, and for fees other than the initial fee at the start of the case it is 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.
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. But the cost of tracing witnesses, where that is necessary, can vary greatly albeit 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.
Most of the witnesses in a case are what are known as witnesses of fact - people who give evidence about things they have seen and heard. But sometimes a case needs an "expert witness", that is to say an expert such as an engineer, surveyor, or surgeon 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 the cause and prognosis of a medical condition. Often the specific permission of the court/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 cannot be used. For example, in a dispute over a restrictive covenant purporting to prevent a neighbour building on their land (whether the covenant should be modified or an injunction granted to prevent breach) if one of the questions is whether the proposed building would obscure a pleasant view of a lake, that would not normally be a matter on which expert evidence is required because, given the location and dimensions of the proposed building, it does not require any particular expertise to tell whether that would or would not obscure a view from a particular vantage point. But if the question is the amount of noise and traffic which would be caused by the construction and operation of a leisure centre of a particular design, then that is a matter on which expert evidence may well be needed.
The majority of cases do not require an expert witness. Some cases may or may not require an expert witness depending on what matters turn out to be in dispute as the case proceeds. Often a client has no choice about whether or not to engage an expert witness - if the matter calls for an expert opinion then an expert is required; if not an expert is not allowed. However some specialist tribunals, such as the Lands Chamber of the Upper Tribunal, themselves have particular expertise and this may mean that the client has a choice. For example if the amount of compensation to be awarded, in the event that the tribunal discharges or modifies a restrictive covenant, is likely to be modest, then the client may decide not to engage an expert to give an opinion on the diminution in value of the land and/or the nature and extent of inconvenience likely to be suffered, whereas if the amount of compensation may be larger the client may think it wise to engage an expert to give an opinion. All other things being equal, if one side decides to engage an expert, then the other side will be more likely to engage an expert.
The cost of expert witnesses varies greatly and sometimes the court/tribunal will allow each side to have an expert witness and sometimes the court will require a "single joint expert" witness. Using an SJE should in theory save costs but because the use of an SJE requires collaboration between each side in agreeing "joint instructions" the theoretical saving can be lost if the parties take too much time trying to agree the "instructions".
Important Note The court/tribunal may, depending on the rules of the particular court/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 and common reasons why they may be more or less than any "ballpark" figure given, not about the question of recovery of costs. Note also that, although once a case has proceed to trial or other final hearing, that is usually the end, 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). 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 May 2020 Disclaimer