In this blog post, I am going to discuss how barristers’ clerks can assist solicitors with costs management and recovering barristers’ fees, beginning with an outline of a clerk’s role and the clerk/solicitor relationship. If you were at the Harmans Costs Seminar on 5 May 2016, you will have heard me make these points before.
I appreciate that individual chambers, barristers and clerks may not all work in the same way and I can only speak from my own experience as to general good practice.
What is a clerk?
A clerk’s role cannot be explained in simple terms as the role is so varied with many different aspects to it, which means that no one day is ever the same. The essential role of the clerk is to manage the barrister’s diary to ensure:
- Hearings, conferences and other meetings can be accommodated.
- The barrister is at the right place at the right time and has had time to prepare for that case.
- The barrister isn’t double-booked and is available for all commitments.
A clerk deals with all aspects of a barrister’s fees, from agreeing fees at the outset to chasing outstanding fees for payment. A clerk will also market and promote the barrister to ensure their practice is developed logically and they are recommended for the cases which match their expertise.
The importance of the clerk/solicitor relationship
A clerk’s priority is to provide solicitors with an efficient service from both the barrister and chambers as a whole.
When an enquiry is made to retain a barrister, whether for new work, on existing commitments or to request fee quotes, it is important the clerks are provided with as much information as possible regarding the enquiry, to enable us to assist efficiently.
Such information includes:
- The seniority of barrister required.
- The work to be undertaken.
- The nature of the case.
- The deadline for return of the work.
- The likely timescale for receipt of papers.
This allows clerks to get a feel for the case in order to assess suitability. Lack of insight can make allocating work and finding the right barrister much more difficult.
Barrister’s diaries can be extremely busy, so when enquiries are made clerks often have to check if work can be accommodated. There may be a delay in providing an answer but this means that when we do respond, the answer is an accurate one.
Assisting with cost estimates for costs management
The importance of providing plenty of notice when requesting cost estimates for barristers’ fees cannot be stressed enough. It is not beneficial for solicitors or clerks to request estimates within a short time frame, as this will affect the accuracy of the estimates.
To ensure accurate estimates are provided, as much information as possible is required. It is likely the barrister will be engaged in professional commitments, so we rely on solicitors to assist where they can.
To ensure accurate estimates, it is helpful to know:
- The complexity of the case.
- The issues in dispute.
- The value of the claim.
- The number of experts instructed.
- The length of the trial.
- The precise nature of the estimates required.
Again, this allows clerks to obtain a feel for the case and calculate the likely time to be spent on each item of work.
In my chambers, most estimates are based on an hourly rate and estimated time to be spent by the barrister. We have templates with average hours for certain types of cases. However, these are not rigid as we recognise that barristers can work differently, cases are varied and there is a need for flexibility. Estimated brief fees for trials or interlocutory hearings will be calculated based on the complexity, importance, length and location of the hearing, and the amount of preparation involved.
I have seen many cases where barrister’s fees have been estimated by solicitors without reference to counsel or their clerk. It is important for solicitors to liaise with clerks before providing estimates to the court, because if estimates are too low and have not been reviewed by a clerk, it can cause problems at a later date. Clerks have no issue reviewing solicitors’ estimates, as long as changes can be suggested if necessary.
Assistance with fee recoverability
As a chambers, we try to make fee notes as clear and concise as possible to maximise recoverability and reduce the impact of challenge from the paying party.
On many occasions, clerks aren’t consulted when issues arise with the recoverability of barristers’ fees. However, it may be worth doing so.
When points of dispute are raised by the defendants and offers made in respect of barristers’ fees, I have authority to agree reductions up to certain levels. If reduction requests are made, I look at:
- The fees billed.
- The value the case settled for.
- If a success fee has been claimed.
- The level of the success fee claimed.
- The amount of instructions undertaken.
I then compare these against the disputes raised by the defendants.
Barristers sometimes question agreed reductions, even when they are within the clerk’s authority. To justify reductions, information is required as to why the reduction has been requested. Information which assists includes the nature of the disputes raised by the defendants, the reduction the solicitors are taking and any specific challenges to counsel’s fees.
Within our chambers, a pragmatic approach is taken when reductions are requested. However, it is important to speak to us before these are agreed with the paying party, as we may be able assist.
If an agreement on costs cannot be reached and the matter proceeds towards a detailed assessment hearing, chambers can further assist. A barrister can provide input on the points of reply to address the challenges made by the paying party.
A barrister can also produce a note to assist with costs, which can be served on the court and the paying party. The note will address specific issues raised within the case, the complexities of the case and any exceptional issues, and it will also explain why the case was managed the way it was and address any specific issues raised by the defendants. Our experience is that increased offers have been made following receipt of these notes.
Conclusion
A clerk’s role is to work closely with solicitors to achieve the best result for everyone involved.
