Apportioning counsel’s fees

Miller v Hales [2006] All ER (D) 67 (Jul); NLJ 8 December

Although the claimant was the successful party, he was only awarded his costs after a certain date as a penalty because of costs thrown away. Briefs had been delivered to counsel before that date, but the trial was after it. In apportioning the brief fees, the judge made the following observations: ‘The old, the very old, rule was that when a brief was delivered the full fee was payable whatever happened thereafter. Many years ago, it became common for agreement to be reached between the solicitor and counsel’s clerk in large cases as to the dates on which proportion of the brief fee would become payable in advance of the trial. There are two elements to be reflected there: the work counsel would put in on the brief as the trial approaches, which would be regarded as the main element, and the fact that counsel has been booked for the trial and so will have a gap in his diary if the case settles, which may be difficult to fill at short notice. I would not expect today that where no particular terms have been agreed, counsel would require to be paid his full brief fee where the brief had been delivered well in advance of the trial and the case settled soon after delivery. In short, it is today appropriate to take a realistic and practical approach rather than to apply rigidly the old rule that a brief fee becomes payable on the delivery of the brief.’