A cost judge has slashed counsel’s costs from the claimed £110,000 to £27,500 after the case was effectively settled two weeks before trial.

The claimant in Hankin v Barrington had argued for just a small reduction in leading counsel’s fee based on the preparation that had gone into the cancelled trial and the other work turned down because it was in the diary.

Costs judge Deputy Master Campbell accepted there should be a payment but said the fees as claimed were ‘unsupportable’ and gave the appearance of being ‘unreasonably high’ for the defendants to meet.

The underlying claim had been from a professional rugby player with London club Saracens who suffered a severe head injury on a pre-season tour. He started proceedings seeking £3.16m compensation and directions were given for a trial on liability and quantum to be heard over 13 days last March.

The case settled at mediation in February 2021 and all subsequent costs were agreed except for fees of leading counsel Robert Weir QC, whose charging rate was £550 per hour.

The defendants’ primary contention was that Weir’s fee – aside from the £15,000 agreed for the mediation – should be nil. It was submitted that it was reasonable to suppose that he would have been able to take on other work in the days freed up by the settlement – and indeed Weir had undertaken six conferences and two short hearings in that reclaimed time.

If the court was minded to find there should be some recovery, the defendants said the brief fee of £110,000 was ‘wholly unreasonable’ and that the preparation time claimed for was excessive.

The claimant submitted that liability, causation and quantum had all been contested on a case that was of public importance. Weir’s diary had been blocked out for 22 days and the case was not removed from the diary until the start of March, so the extra work he was able to pick up was limited. It was submitted that any abatement of the brief fee should be relatively low and in the region of 20-25%.

Deputy Master Campbell accepted this was a difficult and complex case but ‘not strikingly’ more so than other tragic and life-changing cases which come before the courts. He pointed out that Weir had already undertaken 17.5 hours’ work on the matter by 26 January ahead of the mediation for which the fee of £15,000 was agreed.

He added: ‘All these factors militate against a brief fee for a leader of £110,000 plus VAT as being one that can be justified between the parties. In so far as an hourly rate has been used, it is too high and reflects a sum for pre-eminence.’

Law Gazette