One of the country’s most senior civil judges has said there are no firm decisions yet on whether barristers should be subject to guideline hourly rates.
Lord Justice Birss, deputy head of civil justice, told a roundtable of the Association of Costs Lawyers that there is no certainty on extending GHR to counsel.
Birss explained that with the most straightforward changes recommended by the Civil Justice Council’s costs review now having been implemented, rule-makers are looking at longer-term projects.
The two current projects are a pilot to test the idea of costs budgeting-lite and the proposal to bring counsel into the GHR.
Birss LJ said that idea of the GHR extension was mainly to assist in the summary assessment of counsel’s fees, but a decision is still some way off.
‘I do not know whether we are going to end up with guideline hourly rates for counsel,’ he said. ‘Maybe we will. Maybe we will not. Maybe it will be broken down by specialisms. Maybe it will not. We need to have a better way of doing it than we currently have, which cannot be difficult because, currently, there is not anything. In terms of what it is, I am absolutely open to offers.’
GHR for counsel were welcomed by Shaman Kapoor, of 39 Essex Chambers, for introducing greater predictability. Fellow barrister Roger Mallalieu KC was more guarded but accepted that they were coming either way – ‘It’s quite hard for counsel to mark themselves out as a special case, even if they wanted to’.
Mallalieu asked where the evidence would come from to set the figures and pointed out it has proven hard enough over the years to establish solicitors’ hourly rates. He also questioned the use of geographical areas: ‘It’s not working very well for solicitors; it is even harder to see that working when it comes to barristers.’
The CJC review, published in May 2023, described the exclusion of counsels’ fees from GHRs as an ‘anomaly’, although it accepted that this would be a difficult exercise.
The review added: ‘Whilst we appreciate that this will pose numerous challenges, nonetheless, there is currently a real perception that counsel’s fees are not being adequately addressed and that there is no real justification for treating them differently from solicitors’ fees. We believe this change would be consistent with the aim of providing certainty for parties over their liability to pay opposing parties’ costs.’
