In a highly litigious world that we find ourselves living in today, it is increasingly likely that Solicitors will find themselves in a position where they are involved in Litigation concerning their own Cases/affairs. Is it therefore fair that a Solicitor can recover their usual retainer hourly rate from the paying party for work undertaken by themselves throughout the Claim?
In Robinson v EMW Law LLP [2018] the High Court held that a solicitor engaged as a consultant by a law firm instructed in relation to his own matter could recover legal costs for the time that he had personally spent working on the matter. This, in my humble opinion, is entirely reasonable.
However, as the world of Costs appreciates, the issues is never that straight forward. Further issues came about as to the date from which the solicitor could recover his costs from the paying party.
The SCCO concluded that “recovery only ran from the date of the written retainer between client and solicitor” and refused to allow recovery of costs incurred prior to the retainer being entered into, on the basis that there was no written agreement that the Solicitor would be responsible for those costs.
The High Court stated however, that the SCCO had approached the issues incorrectly and that the issue was whether it could be shown that the solicitors were instructed before the date of the written retainer, and in this case, as they were already on record, they had clearly been instructed prior to the retainer being signed by the Solicitor.
It therefore followed that unless the parties could produce written evidence that the Solicitor would not be personally liable for the costs prior to the retainer being signed, then it can be presumed that the Solicitors were indeed instructed and that the Solicitor would be responsible for their costs and therefore, if successful, ultimately the paying party would also be responsible for those costs.
This is clearly a common sense approach by the High Court in that any Solicitor employed by a firm of Solicitors will receive a salary for undertaking his or her days work. Whether that work relates to his or her own Claim is irrelevant as effectively, the firm should still recover costs for the work undertaken by that Solicitor.