In Rushbrooke UK Ltd -v- 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) the Court gave guidance in relation to the principle of delegation when considering the reasonableness of costs. Where there has been insufficient delegation, it is likely the court will find costs are unreasonable. The key findings are at paragraph 14.
The Judgment
The starting point is that solicitors should delegate work:
I am unhappy with the notion that everything here has been done by a single Grade A fee-earner. One of the important skills of a solicitor is to know how to delegate.
Drawing on his 30 years’ experience in practice HHJ Paul Matthews went on to say:
In my experience as a commercial litigation solicitor, there were no cases in which no work could have been delegated.
In his judgment, whether or not there was a junior fee earner to delegate the was not relevant:
Sometimes it is said that, well, there was no one else to delegate to… the answer to that plea is of course that, as between himself and his solicitor the client is quite entitled to insist on a grade A fee earner doing everything. On the other hand, they are not entitled to require the opponent to pay for it. The question is whether the costs are reasonably incurred and reasonable in amount. Reasonableness takes into account of potential delegation.
In relation to the burden of proof the judge held:
It is not for the paying party to have to identify work which could have been done by a more junior fee earner.
Summary
Delegation should be the rule not the exception. The receiving party will have to justify a decision not to delegate. The test of whether an item could have been delegated is objective; if it was suitable for delegation then it should be allowed at a lower rate even if there was no fee earner to delegate to.
Matthew Rose is a solicitor in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.
