England and Wales High Court (Senior Courts Costs Office) Decisions

"One thing that does emerge from this case is that, at any rate in a case in which substantial fees sought by counsel are going to be open to review in a legal aid detailed assessment, it would certainly be helpful to the court and wise from the point of view of counsel to furnish at least some additional material at the stage of the detailed assessment as to why the substantial fees in question ought to be regarded as proper. It may, for example, be a useful practice for counsel to prepare a short note on the point in the course of, or at the conclusion of, the case, to be submitted to the solicitors with fee notes for the purposes of the legal aid assessment. The Costs Judge himself in the present case, in supplementing his written reasons at the stage of giving permission to appeal (which he granted on certain points and not on certain other items), expressed regret that certain matters referred to in the material put before him by both counsel to explain why it was a proper case to grant permission to appeal had not been before him at the stage of the detailed assessment itself. It may be true that even on a review of taxation, such as is preserved in transitional cases to the limited extent that I have mentioned, it is not strictly legitimate to put before the Costs Judge new material but in practice it may be easier to get such material in in such a context with permission, in that the Costs Judge may be more willing to grant permission than appellate judges. In relation to entirely post CPR cases the review procedure is not available and the Bar therefore perhaps needs to be all the more aware that there is not likely to be a second chance, or only a very limited possibility of a second chance, in terms of putting material before the court which counsel wish to rely on in justifying the fees or in challenging a reduction imposed on a detailed assessment."