PI Brief Update

Axnoller Events Ltd -v- Brake [2021] EWHC 2362 (Ch) - Nicholas Dobbs, Temple Garden Chambers

15/09/21. In Axnoller Events Ltd -v- Brake [2021] EWHC 2362 (Ch), HHJ Matthews (sitting as a Judge of the High Court) carried out a summary assessment of the costs of an application dealing with various issues that had arisen in the proceedings. Of particular interest, the Court was asked to consider whether the charging rates for London solicitors were appropriate for this case.It had been determined in an earlier decision that the Mr and Mrs Brake would pay 50% of the costs of the application, to be assessed on the standard basis (see [2021] EWHC 2343 (Ch)). Amongst other matters, they argued that the charging rates for their opponent’s London solicitors,[1] who relied on the 2021 guideline hourly rates due to come into force on 1 October 2021, were excessive.

It was argued in response that the litigation was legally and factually complex, justifying the instruction of London solicitors and their charging rates, consistent with the approach in Wraith v Sheffield Forgemasters Ltd [1997] 1 WLR 132. HHJ Matthews accepted that the litigation as a whole was peculiarly wide ranging, factually complex and, to some extent, legally difficult. The application was ‘document heavy’, in part because of material adduced by the Brakes. In addition, one of the applications involved a wholly new area of law. It was held that while instructing London solicitors may have been more expensive than provincial solicitors, that by itself did not make their retainer unreasonable when assessing costs.

HHJ Matthews followed the reasoning in Wraith v Sheffield Forgemasters Ltd, in which Kennedy LJ (at [141] of that case) set out matters that the court should take into account when considering the reasonableness of the decision to instruct particular solicitors. These included the importance of the matter to the instructing party, as well as the legal and factual complexities of the case.In Axnoller, the property that was the subject of the possession claim was worth several million pounds. It was reiterated that the factual background was complex, parts the claim legally complex, and that the matter was being tried in the High Court rather than the county court, all of which favoured the view that the decision to instruct London solicitors was reasonable.

HHJ Matthews accepted that the 2010 summary assessment guidelines were now “well out of date” and of little assistance in this context. Further, although the new 2021 guidelines had not yet come into force, they had already been approved by the Master of the Rolls and, it was recorded, had already been used in summary assessments in the High Court (ECU Group Plc v Deutsche Bank [2021] EWHC 2083 (CH), was cited as an example). The new guidelines were therefore taken into account. However, the rates claimed in this case were still considered “well over the top, even for London firms” and HHJ Matthews went on to review whether the amounts charged went beyond what was appropriate for the case (see [10] to [14]).

HHJ Matthews acknowledged that the summary assessment of costs was not expected to be a ‘line-by-line’ billing exercise like a detailed assessment, but nevertheless, there were grounds to consider the amounts charged excessive in the sense that (i) the hourly charging rates should have been lower, (ii) the work done on documents was significantly more than it should have been, and (iii) the attendance at the hearing of one or other of senior and junior counsel should not have been charged for. Accordingly, the costs awarded were significantly less than the total initially claimed, and the case provides an instructive example of the way in which the court may approach summary assessment where the decision to instruct London solicitors is in issue.