Counsel’s fees—costs recovery
Produced in partnership with Alice Nash of Hailsham Chambers

The following Dispute Resolution practice note produced in partnership with Alice Nash of Hailsham Chambers provides comprehensive and up to date legal information covering:

  • Counsel’s fees—costs recovery
  • Liability for counsel’s fees
  • Property claims
  • The indemnity principle
  • Assessment—brief fees and refreshers
  • Comments from the judge
  • Test applied to assess brief fees
  • Work covered by the brief fee
  • Assessment of refreshers
  • Assessment—use of multiple counsel and costs recovery
  • More...

Counsel’s fees—costs recovery

It is settled law that a barrister’s fees are recoverable as disbursements, irrespective of whether the work could have been done by the instructing solicitor, a principle set out in Crane v Canons Leisure Centre. They are in principle recoverable from an opposing party in litigation. This Practice Note considers the recovery of counsel’s fees from the other side in proceedings. It considers the liability for counsel’s fees and how such fees are assessed and the approach where two or more counsel are instructed. It also considers the effect of adjournment or settlement and finally looks at the concept of devilling and the impact of this on costs recovery.

For general guidance on the recovery of disbursements expended during proceedings, see Practice Note: Disbursements—costs recovery.

Liability for counsel’s fees

Liability for the barrister’s fees will rest with the legal representative, rather than the lay client, unless a barrister is instructed under the licensed access or direct public access schemes. This is because the legal representative is not a mere intermediary: the arrangement, contractual or otherwise, is directly between the legal representative and counsel (Mostyn v Mostyn).

Since 31 January 2013, contractual arrangements between barristers and solicitors have been the norm and there is no doubt that the legal representative is entitled to reimbursement from the lay client of counsel’s fees once they have been paid (Morris

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