Solicitors' charges vary enormously. The main factors are (1) geographical - where the lawyer is based - much higher in the City of London than more rural areas; (2) his or her experience - years in practice and speciality; and (3) the type of work.
The courts and Ministry of Justice have developed a tariff of hourly rates which are used to assess what parties should pay when they lose a case. These are only a guide, and we expect to be able to recover at rather higher levels to reflect our experience and speciality.
Recovering costs from a losing party
Understandably, clients therefore wonder if they win a case, and have costs ordered in their favour, why they should have to pay at all. The problem is that during litigation you will almost always end up doing work the costs of which for one reason or another cannot be recovered from the other side. The other side might, for example, object to the amount claimed, or extra work caused by overlap between two fee earners, or travelling to see the client where the client might have come to visit the solicitor, or what is perceived as excessive time spent on the case. Normally, doubt is resolved in favour of the paying party. This means in practice that if your bill is £x you will recover only a percentage of £x.
This varies. We normally warn clients that they should expect a 70-80% recovery of their costs if successful. We hope and expect to do better than that; and, indeed, achieve on occasion 100%. However, even with a 100% recovery of one's claim, there may be some costs which the client has to pay - for example, costs that cannot be included in the claim because they are irrecoverable. Among these in particular (it is a real bugbear with clients!) are the client's own costs of travelling, lost time etc. in pursuing the case. (These can be recovered in rare situations, such as where the client is offering expert evidence). The costs of sorting out funding arrangements are also generally not recoverable.
The same factors of course affect exposure to the other side's costs. Usually solicitors in public bodies (including the Government Legal Department) charge at less than commercial rates, and their bills can appear relatively modest. Sometimes, however, they will employ outside solicitors and/or expensive barristers when the exposure can increase markedly, especially if those are London solicitors. As a litigant, one's exposure is therefore uncertain. We normally suggest estimating the same costs for exposure to the other as one budget's for one's own side's case.
In judicial review work, one is often claiming against a decision-making authority, but another party (for example, a developer) who has benefited from the decision wishes to make representations in court to help the authority defend its decision. Such a party is usually called an "interested party" or a "second respondent". They are often very well funded and employ expensive solicitors and barristers. Fortunately, however, they are not normally entitled to their costs from a losing party, although sometimes they will be awarded the costs of, for example, producing some evidence that has helped the court. Obviously the issue of possible exposure to other parties' costs is something that needs careful consideration, though normally it is not a problem. The point was clarified in one of our cases, where the Court of Appeal overturned a High Court ruling awarding a second set of costs against our client - see the Berkeley costs judgment for more details.
Costs exposure at the permission stage in judicial review cases is in any event limited.
Sometimes a court will make no award of costs against you even if you lose a case, usually because the court perceives that it has generally been brought for public interest reasons. However such situations are rare and this can never be assumed.
Easy as it may be to explain the risks of exposure to opponents' costs, the fact is that those risks are uncertain both as to whether they will transpire and if they do as to how much is at stake. It is therefore essential to try and protect yourself against these risks.
This can be done in various ways:
- It may be possible to obtain a protective costs order (PCO): see further below.
- You may have insurance (often as part of your household insurance policy) which covers legal expenses: see separate tab. This is known as "before the event" (BTE) insurance
Neither type of insurance is generally available in judicial review and statutory appeal cases. For those, one looks to PCOs. It is possible that PCOs will become available in nuisance and similar cases but presently they are not (we continue to be involved on different fronts attempting to have the law clarified in this respect).
Protective costs orders (PCOs)
A PCO involves the Court ordering in advance that the claimant will not be responsible for opponents' costs, or only to a specified amount which is considered affordable or not "prohibitively expensive". We have been in the forefront of progressing this key requirement of the Aarhus Convention and associated EU directives. Important cases have included Davey, Buglife, Morgan and Baker, Garner and Edwards. The last, Garner, was important in the Court of Appeal recognising that one adopts an objective test to the question of affordability and it is not a matter for individual means testing. The CJEU's decision in Edwards underlines the importance of not preventing access to justice by fear of adverse costs.
The implementation of the Aarhus and related EU rules in England and Wales was codified in April 2013. In effect this enabled claimants in judicial review claims within the scope of the Aarhus Convention (which includes most JRs of planning decisions) to have a PCO with a maximum liability of £5,000 if they are individuals and £10,000 if they are other legal persons such as NGOs or companies. There is a reciprocal limit on recovery of £35,000 plus VAT. However, as of 28 February 2017, the Government has amended those rules so that claimants in environmental judicial reviews must give evidence of their means of funding the claim. It is also possible for the defendant to apply to have the costs caps lifted or changed on the basis that whatever figures proposed would be fair in the circumstances and not render the proceedings 'prohibitively expensive'. It remains to be seen what approach the Court takes to these matters and whether there is a significant change in approach to the previous regime of 'automatic' costs caps.
Terms of business
Current commercial rates for litigation are set out in the Terms of Business, available on request. As is normal practice, we record time on a six minute (=one tenth of an hour) basis. Our case management and accounts system enables us to provide a fully itemised breakdown of all time spent, so the level of fees charged is entirely transparent.
We are prepared to agree lower rates and/or rates on a daily basis for certain types of work, particularly appearing at or managing a public inquiry, where it does not make sense to charge on a strict time basis.
In conditional fees cases we will base our charges, and any success element, by reference to these rates.
Barristers tend to charge more on an item-by-item basis, although this will, of course, in fact tend to reflect time spent. However one can agree these fees in advance so the solicitor (and client) knows where everyone stands.
Contrary to popular belief, it can be a lot more economical to have a barrister involved in the work at an early stage. Barristers' hourly rates are comparable to those of solicitors, though the structure of the bar (involving "junior" barristers divided in turn by experience between very junior, middle ranking, and senior, and "silks" - QCs) makes for some anomalies. When it comes to the hearing of a case the barrister will charge a fixed "brief" fee which reflects estimated preparation time and appearing in court for the first day. A daily "refresher" is charged thereafter.
Court fees for judicial review work in the High Court are modest and relatively insignificant in the context of costs generally. (Note - fees for other types of action, including statutory appeals and e.g. nuisance cases, are higher). Fees increase somewhat in the Court of Appeal. In the Supreme Court they become much more expensive - but then, by the time one gets there, so are the stakes generally. In our experience fees are not usually a determinative factor as to taking a case forward in any level of court.
Value Added Tax
VAT is chargeable on practically everything except court fees. A nice quirk of the VAT rules means, however, that if you lose and have to pay the costs of another party which is itself VAT registered (which most public body opponents are) you do not have to pay their VAT.
Judicial review costs estimates
Note - the figures below are given without considering possible discounting on conditional fee etc. arrangements. As above, fees are subject to VAT.
The crucial stage in a judicial review case is getting permission to proceed at all. See the judicial review procedure tab for details of what is involved.
How much time is spent and therefore how much it costs will depend on all sorts of factors - for example, complexity of the matter, the documents involved, meetings with the client, whether one makes a site visit and/or a visit to the decision maker's files, work prior to beginning the actual court proceedings, extent of counsel's involvement, level of counsel used, and so forth. Sometimes, owing usually to the need to act very quickly in this type of work, but having been approached at the 11th hour, one can physically lodge the bones of a claim in short order, so actually protecting the position is relatively cheap.
Costs therefore vary a lot but we usually advise clients to budget around £4,000-8,000 plus VAT for the permission stage. It can be lower - but seldom less than £2,500. Larger and more complex cases can take up much more time and therefore cost a lot more.
These costs get you to the stage of the judge deciding on paper whether you have permission to proceed or not.
If you are refused permission but renew to an oral hearing, the costs of this will normally be in the region of £3,000 to £4,000 plus VAT including counsel's fees. Rules of court make it unlikely that you will be exposed to the other side's costs even if they turn up and successfully oppose you at the oral hearing. However you are exposed to the costs that the defending party has been put to in providing written so-called "summary grounds for contesting the claim". We have experience of a huge variability in the level of what other parties claim and can give you more detailed advice if required, but amounts actually awarded should be relatively small. It is sensible to budget a figure in the £1,000-3,000 bracket.
Once permission is granted, we normally estimate the costs from then on to the conclusion of a one-day hearing in the High Court at £12,000-18,000 plus VAT for each side. It can less than this range, and sometimes much more, but this is a useful guide. The exact amount will again depend upon many factors, including what the other side says by way of evidence, what level of barristers are used and the complexity of the issues. For example, use of a QC in addition to one's junior barrister will increase costs to considerably above that bracket. The level of costs is something to keep under continual review.
All sorts of factors affect time spent and therefore costs of a case. These include complexity of the law, volume of documents, number of parties and advisors involved, etc. Meetings can be very time consuming. Clients can themselves help to keep costs down by being well organised (see "Organising your case").
Costs in the Court of Appeal tend to be lower than the High Court,as the bulk of the preparatory work has been done. However, there can still be a lot of work involved, particularly where the High Court has not granted permission to appeal and one has to go through the process of seeking it from the Court of Appeal.
Supreme Court costs are invariably higher, primarily owing to the procedural and documentary requirements, and, as mentioned, the level of court fees. Also, because it is a final court of appeal, one inevitably leaves no stone unturned in an effort to win the case.
Court of Justice of the European Union - CJEU
Cases we have going to the CJEU are normally "referrals" from the national court - at whatever level - seeking a "preliminary ruling" i.e. clarification of a point of law. The costs are treated as costs in the national court.
European Court of Human Rights
If you win a case in Strasbourg, the ECHR will normally award you your costs against the UK Government, though the amounts awarded are more modest than domestic-level costs. If you lose, however, you do not have to pay the government's costs. The level of costs is very much dependent on the circumstances of the individual case; initial costs are similar to an application for judicial review though normally it will have been necessary to have gone through the domestic process first.