Counsel Fee Dispute for Attendance at Court Following Consent to Vacate in Fixed Costs



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Counsel Fee Dispute Overview

ARC Costs were instructed to assist on a case in which the Paying Party failed to make an offer to pay for counsel fees, which totalled to £900 + VAT. The paying party’s reasoning for not putting forward an offer for Counsel fees was “no offer has been made for the Counsel fees being claimed as the Hearing did not take place and therefore is not recoverable.”

ARC then asked the Paying Party for their consent to arrange a remote hearing to settle the outstanding matters of Counsel fees, as well as an additional dispute regarding application costs. The Paying Party consented to this remote hearing and a telephone hearing was arranged. Costs negotiations were still ongoing during this time via email between the two parties.

Ultimately, ARC were successful in their pursuit of having the Counsel fees covered by the Paying Party, and recovered the costs of the application.


Submissions of the Parties

ARC Costs argued for the payment of Counsel fee 1 which was £600+VAT when a disposal hearing was listed to be heard on the 10th of August 2020. However, the hearing was vacated on the day as the Court ordered that a Second Defendant was to be added to the proceedings. A disposal hearing is essentially a trial, and treated as such under CPR 45.29C, Table 6B. The claim was valued up to £5,000 and so the advocacy fee under Table 6B is £710+VAT. As the fee claimed, £600+VAT, was lower than this, we (ARC) argued it should be allowed in full.

ARC additionally argued for the payment of Counsel fee 2 which was £300+VAT. A consent order was filed the day prior to the hearing but the hearing was not vacated and so, Counsel was briefed to attend the same. As such, this fee was also deemed recoverable.

However, the Paying Party only agreed to pay Counsel fee 1 but made no offer to cover Counsel fee 2 due to the hearing not taking place. ARC argued that it was clear the hearing did take place as their client’s barrister attended, yet the Paying Party argued the consent order was filed the day before the hearing and the parties could have simply sent the same to the Court and the hearing did not need to take place.

ARC stated “ The Consent Order was sent to the Court the day before the hearing on 27 October 2020, but it was not approved by the time of the Directions hearing on 28 October 2020, thus my client had to send Counsel to the hearing so they could explain the position to the Judge and ensure that the Consent Order approved”……”It is unreasonable and disingenuous for your client to claim nobody should attend the hearing when the Consent Order was not approved and the Directions hearing not vacated.”

The Paying Party replied “The Consent Order may not have been actioned ahead of the hearing to vacate this however both parties signed the Consent order and filed with the Court the day before the Hearing, therefore the Hearing should have been vacated. It is the Defendants position that unnecessary costs have been incurred from sending Counsel to the Hearing instead of vacating the same.”

ARC finalised their argument by directing the Paying Party to attached emails in respect of the Consent Order and insisted that it was the Paying Party’s clients who filed the order ahead of the hearing just before 1.43pm on the 27th of October 2020. Emails were referred to in which the Paying Party’s firm have confirmed the hearing with the Court.

ARC finalised their argument; “The email on 27 October 2020 to the Court clearly states that if ‘the Judge is happy to vacate the hearing then please let us know’ thus the onus was on your client to confirm the hearing had been vacated. Did your client/firm confirm the hearing had been vacated before the Directions Hearing, which was 10am on 28 October 2020? In any event, there was little time to confirm that the hearing had been vacated, and therefore my client had to instruct Counsel to attend.”

Following this, the Paying Party agreed to pay the Counsel fees that ARC were due.


How can ARC Costs Assist You?

The Costs Draftsmen and Costs Lawyers at ARC Costs are highly experienced in the recovery of legal costs.

We can assist in the recovery of Counsel fees by contacting the paying party in an attempt to obtain agreed costs.

We can also assist in the recovery of your costs at detailed assessment. We can assist in the drafting of your bills of costspoints of dispute and replies to points of dispute. If an agreement cannot be reached as to costs, we can further assist by providing representation at detailed and porvisional assessment hearings at Court.

If you require any free initial advice, or our assistance with regards to any aspect of costs, please email us at, or contact us via the Contact Us page and one of the team will get in touch on the same working day.  Our team can also be called on 01204 397302.



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