Forum of Complex Injury Solicitors Insistent on ‘Market Rate’ Approach to Guideline Hourly Rates Review

According to Litigation Futures, The Forum of Complex Injury Solicitors (FOCIS) has called on the Civil Justice Council (CJC) Working Group undertaking the review of solicitors’ guideline hourly rates (GHR) to meet its sector-specific desire for rates which are higher than the 2010-established GHR still in force today.[i]

In support of this argument, FOCIS submitted to the Working Group that the ‘market rate’ for solicitors handling complex injury cases is ‘markedly higher’ than both current GHR and rates allowed by Costs Judges in practice (these are typically ‘well above’ GHR).[ii]

Seeking to distance complex injury claims from fast-track personal injury litigation, FOCIS also argued that the solicitors it represents have more in common with solicitors who deal with complex commercial disputes of equivalent value.

Another factor put forward to justify ‘market rates’ for complex injury claims was the fact that litigation can be long drawn-out (between ‘2 to 9-years’), thus leading to ‘deferred payment’ of costs.

What is more, FOCIS asserted that post-LASPO claims often result in liability for a costs shortfall (whereby the claimant has to top-up costs recovered from the defendant with a proportion of damages awarded) and it considers that GHR should therefore epitomise ‘real client rates’, as opposed to ‘artificial rates’, so that the 100% compensation principle can be achieved.

Reinforcing FOCIS’ sentiments on this issue, its Chairperson, Julian Chamberlayne, who is also a Partner at Stewarts Law and Head of International Injury, stated as follows:

‘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’.

It will be interesting, in the coming months, to observe whether any other niche, sector-focused legal groups launch appeals for the CJC to advocate substantial increases in post-review GHR, especially pleas that request a ‘market rate’ assessment. 

We make this observation because the Working Group’s approach so far has been to pay close attention to what courts are ‘generally allowing’ as the barometer for rate change and Vice-Chair, Master Gordon-Saker, has publicly defended this methodology in preference to being influenced by what solicitors charge, what it costs them do the work, or what the market rate happens to be.[iii]

 

[i] Neil Rose, ‘Complex injury lawyers urge hourly rate review to recognise specialism’ (9 December 2020 Litigation Futures) <https://www.litigationfutures.com/news/complex-injury-lawyers-urge-hourly-rate-review-to-recognise-specialism> accessed 10 December 2020.

[ii] ‘FOCIS INVITE CJC NOT TO RESIGN SERIOUSLY INJURED TO INEVITABLE COSTS SHORTFALL’ (December 2020 FOCIS) <https://focis.org.uk/news> accessed 10 December 2020.

[iii] Neil Rose, ‘Increase guideline hourly rates by 35% pending CJC review, judge says’ (3 December 2020 Litigation Futures) <https://www.litigationfutures.com/news/increase-guideline-hourly-rates-by-35-pending-cjc-review-high-court-says> accessed 10 December 2020.