This has often been an interesting question, as there are different factors to weigh up. For example, Counsel needs to prepare, and quite probably, turn away work for the trial period. But at what point is the brief fee payable, if the case ultimately settles prior to the trial commencing?
In Hankin v Barrington & Ors [2021] EWHC B1 (Costs), Deputy Master Campbell assessed whether all, or part, of Counsel’s brief fee was payable when the case settled two and a half weeks before the trial was due to commence.
As the trial did not take place, it was considered that this was “good reason” to depart downwards from the approved Costs Budget, and that appears to be a sensible decision by the parties.
Ultimately, the brief fee was allowed, but significant reductions were made to the same. This resulted in the claimed brief fee of £110,000 but being reduced to a fee of £27,500 plus VAT. Factors considered included the hourly rate; the probability that not much time would have been spent preparing for the trial; and then the alternative paid work that Counsel was able to carry out during the period where he had been booked for the trial.
In my opinion, this point will always rumble on, but this case is a timely reminder of the factors to consider.
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