To what extent and when should Counsel’s brief fee be recoverable where a matter settles shortly before a hearing? The issue was recently considered in a challenge to a detailed assessment in Hugh Cartwright & Amin v Devoy-Williams and another  EWHC 1692 (QB) (4 July 2018) (Davies J).
The case involved a dispute over an unpaid bill in the sum of £19,276.00. The Claimant issued proceedings, and the Defendants separately issued a negligence claim.
A settlement for £24,250.00 was agreed at a mediation in early 2016, the day before a preliminary hearing on a jurisdiction issue and five days before the trial. The Defendants agreed to pay the Claimant’s costs subject to Detailed Assessment if not agreed. The Claimant served a Bill of Costs in the sum of £50,305.83 and as costs could not be agreed the matter proceeded to Detailed Assessment. Master Rowley’s Detailed Assessment was challenged by the Claimant on four grounds, two of which succeeded.
At assessment Master Rowley reduced Counsel’s brief fee by more than half, from £6,500.00 claimed to £3,000.00. The reasoning provided for the reduction was on the basis that Counsel was notified that the case had settled at 10:30pm and could in the Master’s opinion have been stood down in the late afternoon.
On appeal, the High Court disagreed with Mrs Justice Nicola Davies stating “In the context of this ‘high temperature’ litigation, the case was not settled until it was finally settled which was not until 10:30pm on the night before the jurisdiction hearing. Counsel’s brief fee had been incurred.
“No counsel properly observing his or her duty would stop working on this case until he or she had been informed of a final settlement. All the preparation work had been done. The barrister was entitled to be paid his or her fee.
The Claimant also succeeded in a ground of appeal concerning an offer made by the Defendants and the default position regarding the receiving party’s entitlement to the costs of detailed assessment proceedings under CPR 47.20(1). The Defendant had made an offer on 20 January 2017 to settle the Claimant’s costs for £29,500, inclusive of the costs of the assessment, conditional upon the Claimant agreeing that the Defendants could set off against that sum their entitlement to damages and costs in the negligence action.
In the first instance, Master Rowley ordered that the Defendants pay the Claimant’s costs up to 20 January 2017 and thereafter the Claimant pay the Defendants’ costs.
The Claimant argued on appeal that it was unable to accept the offer on the basis that the negligence action was being conducted by the firm’s insurers. Master Rowley acknowledged that the offer was incapable of acceptance but determined that the Claimant could have accepted quantum and either varied the conditions, or sought a hearing to determine set-off.
Davies J accepted the Claimant’s argument that the quantum offer was linked to conditions and thus was one which it was unable to accept.
Accordingly, on appeal the High Court again ruled in favour of the Claimant, ruling that a valid Calderbank offer had to be acceptable on its stated terms and should not be one which contemplated further negotiation. The Master had erred by putting the burden on the receiving party (the Claimant in this instance) to negotiate on the conditions or make a counter-offer.
Two further grounds of Appeal were brought by the Claimant, which were unsuccessful including a challenge to the hourly rate allowed by Master Rowley which was dismissed due to the fact that the High Court was unable to consider the Particulars of Claim to assess the nature of the allegations. In the absence of the pleadings Mrs Justice Nicola Davies ruled that it was difficult to “state that the exercise of the Master’s discretion was outwith that which was reasonable.”
The Claimant also appealed the Master’s Order setting off the Claimant’s costs as assessed and detailed assessment costs against any costs liable to be paid in the negligence proceedings. This argument had, however, resolved due to a subsequent order in the negligence proceedings which meant that there was no legal costs for which the Claimant was responsible in the negligence proceedings against which any costs by these respondents could be set off.
This case will certainly be helpful to Claimant’s facing challenges over the recovery of Counsel’s fees for a hearing, where the matter settles shortly before, however, the slightly unusual fact that the matter did not settle until 10:30pm the day before the hearing was crucial in the decision made in the Claimant’s favour here. It seems likely that given the importance placed on the time of the settlement, had the matter have settled and Counsel stood down in the late afternoon (as Master Rowley had incorrectly suggested should have occurred in this case) the decision of the Appeal could have been different. This therefore highlights the importance of standing down Counsel as soon as a settlement is reached.