On this page you can read and download our consultation responses, review FOCIS related case studies and access relevant news items.
A matter of time: guideline hourly rates (Pt 2) - In his second update, Julian Chamberlayne discusses national banding and the impact of enhancement factors on recommended rates
This article first appeared in the New Law Journal on 25 February 2021, the original can be found here (subscription required).
A matter of time: guideline hourly rates - In the first of three articles, Julian Chamberlayne sets the debate on guideline hourly rates in context & discusses Civil Justice Council recommendations for reform
This article first appeared in the New Law Journal on 5 February 2021, the original can be found here (subscription required).
The Forum of Complex Injury Solicitors (FOCIS) have responded to the CJC’s call for evidence to inform their review of the Guideline Hourly Rates (GHR). FOCIS, with the assistance of Harmans cost consultants, submitted a data set from their member firms of cost assessments in cases for complex injury, applying a minimum claim value of £250,000. These claims involve bringing together large teams of medical and non-medical experts, voluminous disclosure of medical and financial loss records and involve attempting to investigate and calculate the lifetime impact of disabling injuries on every facet of the claimant’s life. Trials of these claims will usually be in the High Court and typically last between one and three weeks. The average damages in the FOCIS data set was £4.5 million with some cases attracting awards of tens of millions.
FOCIS submitted to the CJC that these claims have far more in common to complex commercial disputes of equivalent value than they do to Fast Track personal injury litigation. Claimants with such claims deserve experienced and skilled representation to ensure they get the best outcome from their only chance to obtain compensation to meet their lifetime needs. Consequently FOCIS invited the CJC to adopt for complex injury claims the same approach as taken by Mrs Justice O’Farrell in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd  EWHC 2504 (TCC):-
“Solicitors providing such skill and expertise are entitled to charge the market hourly rate for their area of practice. The hourly rates charged cannot be considered in isolation when assessing the reasonableness of the costs incurred; it is but one factor that forms part of the skill, time and effort allocated to the application.
“It may be reasonable for a party to pay higher hourly rates to secure the necessary level of legal expertise, if that ensures appropriate direction in a case, including settlement strategy, with the effect of avoiding wasted costs and providing overall value.”
Judges ought not to reduce rates at all unless they are outside a reasonable range of market rates for the complexity, value and specialisation of representation required.
Julian Chamberlayne, Chair of FOCIS commented that:-
“A party to a multi-track claim who makes a reasonable choice of solicitor for the type and scale of the claim in question ought to be able to recover at up to market rate for that work. Otherwise the full compensation principle is eroded. These are claims of the utmost importance to our clients who have sustained life-changing disabling injuries and are reliant on the claim outcome to provide for their future financial wellbeing and care needs. It is consequently very important that they are able to instruct solicitors with genuine expertise in catastrophic injury claims without resigning themselves to a costs shortfall.”
FOCIS made the following observations based on their data set:-
1. This data which solely relates to complex injury claims will hopefully reduce the risk of decisions being made solely in relation to PI data dominated by lower value claims;
2. It shows that the market rate (with regional variations) for complex injury specialists is markedly higher than GHR (in the applicable region);
3. The rates allowed are, in most cases, well above GHR, but less than the market rate.
4. Most complex injury clients with claims post LASPO are liable for own costs shortfall and hence the market rates are real client rates, not artificial rates set to maximise IP cost recovery;
5. The duration of complex injury cases are typically 2 to 9 years and this significant delay in payment is a factor in justifying the market rates for complex injury claims. There are very few other types of litigation where such lengthy deferred payment is the norm.
6. The average hourly rates allowed were 87-90% of those claimed, suggesting the rates as claimed by FOCIS member firms were not excessive. However only 2 of the 49 cases had rates allowed as claimed at all grades.
On this last point FOCIS expressed the concern that the GHR review involves a significant risk of circularity, as virtually all rates allowed or agreed in recent times will have been dragged down by the legacy of the now aged and flawed GHRs. In every costs dispute our members have faced the Defendants have sought reductions in hourly rates with reference to GHR. Even when the matter proceeds to assessment and even if the Costs Judge departs from the GHR there are few if any judgments that suggest the Cost Judge wholly excised them from his or her decision making. The FOCIS data suggests that once Defendants raise GHR arguments the vast majority of Judges are inclined to give them something for it. That is unfair to claimants who are liable for the shortfall.
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