In Shulman -v- Kolomoisky & Bogolyubov, Senior Courts Costs Office (24/06/20) the Second Defendant (Bogolyubov) had instructed solicitors in Canary Wharf (postcode E14), which would place it within London Band 3 of the Solicitors Guideline Rates. The Claimant, who was liable to pay the Second Defendant’s costs, argued that the court should allow rates falling between the guideline rates for London 1 and London 3, taking into account the nature of the work.
Referring to the judgment of Mrs Justice O’Farrell in Ophen -v- Invesco  EWHC 2504 (TCC) that “the guideline rates are based on rates fixed in 2010 and reviewed in 2014… they are not helpful in determining reasonable rates in 2019”, Master Rowley of the Senior Courts Costs Office considered the Claimant’s proposed starting point to be “entirely opportunistic”. The Master went on to point out that “the Guideline Rates were originally provided to judges when the Civil Procedure Rules arrived in April 1999 and the concept of summary assessment of costs first came into being. Many judges had little or no experience of costs and the guideline rates were there to provide assistance on summary assessment. They were not intended to replace a more thorough consideration of appropriate hourly rates in detailed assessments… it is something of an indictment on the evidence usually provided at detailed assessment hearings that the Guideline Rates have often been used… without variation.“ Although Master Rowley did point out that the Second Defendant had provided no explanation as to how the level of the hourly rates had been arrived at, he commented that the guideline rates re “is really the roughest of rough guides as to what might be allowed”.
In light of these comments, Master Rowley considered that in the absence of any evidence, the Court is required to consider the “pillars of wisdom” at CPR 44.4(3) in order to arrive at a conclusion as to whether the rates claimed are reasonable.
One further comment of note is that Master Rowley pointed out that “there is a very fluid market in terms of what hourly rates can be obtained” and that there are many factors which affect this which fall outside the remit of CPR 44.4(3), such as the solicitor’s appetite for such work or the potential for future work to be obtained from the same client.
Based upon the above, Master Rowley allowed rates of £750 for Grade A, £400 for Grade C, and £200 for Grade D.
It is important to note that this case related to firms practicing in London, which paying parties (and some judges) in regional courts consider to be a “special case” with no application outside the M25. It therefore adds to a growing volume of case law that the Guideline Rates are no longer suitable as a starting point, but until there is guidance from a higher court this should be treated as supportive but not a guarantee for receiving parties outside London.
Matthew Rose is a Solicitor in the Costs and Litigation Funding Department at Clarion. You can contact him on 0113 222 3248, or by email to firstname.lastname@example.org.