On 16 September 2020, Practical Law Dispute Resolution reported that the Civil Justice Council (CJC) established a Working Group, chaired by Stewart J, to conduct an evidence-based review of the basis and amount of the guideline hourly rates (GHRs).
The establishment of the Working Group was swiftly followed by a “request for evidence”, with the initial tranche of historic evidence to be provided to the Working Group by the end of October 2020, to be populated with data from assessments in the period between 1 April 2019 and 31 August 2020. The Working Group will then consider and collate responses, with a view to preparing a draft report for full consultation by the end of the year.
The continuing relevance of the GHRs
In January 2020, I wrote a blog post on the relevance of the outdated “ten-year-old” GHRs in light of the strong comments on the GHRs arising from the decision in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd. At that time, I noted that the GHRs were becoming, in Lord Dyson’s words, “less and less relevant”, but that the Master of the Rolls “will likely be just as unwilling to [update the GHRs] without evidence” (with a previous review in 2014 producing strong recommendations for change only to be found lacking in supporting evidence). I concluded that “if the profession wants this, it will have to play ball and deliver the data needed to make the case. Solicitors will literally pay the price if they don’t.”
More recently, the Senior Costs Judge, Andrew Gordon-Saker, has issued a Practice Note based on Master Whalan’s direction to costs officers handling Court of Protection assessments for bills from the start of 2018. The direction was to enhance the GHRs by 20% for such cases (with evidence in the underlying case suggesting enhancements of up to 31% by the applicants based on the retail price index) until such time as the Working Group’s findings lead to a firmer change (with Master Whalan noting the Working Group’s proposed timeframe as “optimistic”).
For as long as I have been practicing, there has been clear tension arising from the lack of engagement, arguably complacent lethargy, in the provision of meaningful data from receiving parties on hourly rates. It is true that the GHRs (originally branded as for use by the inexperienced for the purposes of summary assessment) have been habitually used as a reference point by paying parties to the point of raising their importance beyond their intentions. It is equally arguable that this has resulted in a suppression on the recovery of reasonable costs by reference to such levels of reliance across the board. In my opinion, those practicing in costs could and should be more sophisticated. I am still amazed that matters before the Senior Courts Costs Office, for example, invariably reference the GHRs in points of dispute. I am more amazed, possibly even astounded, when costs judges use them as a starting point, particularly in significant assessments.
Perhaps this clear wind of change will balance that historic suppression. In order to achieve that, I would suggest that the process should look to capture not only a snapshot of what will be historic data by the time it can be actioned but should also, insofar as it is reasonable and possible, look to future-proof itself so that we do not find ourselves repeating this state of affairs over and over. Although I remain sceptical that the evidence levels required for change will be forthcoming, I force myself to default to optimism regardless.
However, perhaps any lack of data will see the GHRs relegated to where they should be: an unreliable, one size fits all, reference point for the inexperienced, rather than the holy grail they seem to have metamorphosised into over time. Legislation, fixed costs and overreliance on guidelines such as these will only ever give us certainty at the cost of justice. I am sure that most of us are meant to be in the business of justice, perhaps it is justice that is becoming the utopian pipe dream.