Summary: Even in moderately valued matters, there can be reasonable use of King’s Counsel if the case circumstances warrant it, and if the proportionality factors in CPR 44.3(5) and Juby and others v London Fire and Civil Defence Authority (unreported), 24 April 1990, QBD can be met.  In this case, there was the unique factor that two Junior Counsel were initially instructed, with one attaining King’s Counsel status mid-litigation.  Fees for King’s Counsel were ultimately recovered on the basis that an additional factor taken into account, was allowing the client to have continuity of legal representation and King’s Counsel having an in-depth knowledge of the case circumstances.

ARC Costs were recently instructed to prepare a Bill of Costs for a Judicial Review claim brought against two Defendants on behalf of the Claimant, as part of which a challenge was raised as to whether it was reasonable to instruct King’s Counsel.  

What is King’s Counsel?

Formerly referred to as Queen’s Counsel prior to the passing of Queen Elizabeth II, King’s Counsel (in respect of King Charles), also referred to as Leading Counsel in circumstances where Junior Counsel are also instructed, are senior barristers in their specialist fields, appointed as King’s Counsel due to their expertise, experience and knowledge.

Appointed by the Monarch on recommendation by the Lord Chancellor, King’s Counsel are limited in number and considered to be “elite” members of the bar, with approximately 100 barristers currently holding this title (as amongst almost 18,000 barristers in England and Wales, reflecting 0.5% of the bar).  King’s Counsel may often be referred to as KC in short form, which is added as a suffix onto a barrister’s title/name.

Why Were King’s Counsel Instructed in this Case?

The matter stemmed from events beginning in March 2018, when the Claimant was discovered by police after a call from a member of the public. She was found pushing a trolley containing her belongings and seeking help, alleging that she had been assaulted and enslaved by a man who had treated her as a domestic and sexual slave.

However, rather than being recognised as a potential victim of trafficking, she was subsequently arrested and detained. A Letter Before Action was sent to the Home Office challenging the legality of the detention, removal directions, and negative reasonable grounds decision.

Following further correspondence with both Defendants throughout 2018, the matter progressed to formal proceedings.

A Part 7 Claim Form was issued, with extensive correspondence and negotiation taking place thereafter. The claim was settled against the second Defendant for £9,000 plus the Claimant’s reasonable costs, and subsequently against the First Defendant for £22,000, again with costs to be assessed if not agreed.

Complexity and King’s Counsel’s Role

This matter was legally and factually complex and novel, involving multiple areas of law, including human trafficking, false imprisonment, data protection, and human rights law. It also required a detailed understanding of both domestic and international legal frameworks protecting victims of trafficking and the obligations on public authorities.

Counsel’s submissions emphasised that the claim’s complexity justified the level of work undertaken. The claim demanded intricate analysis of policies and procedures concerning the identification and treatment of trafficking victims, as well as the legal interplay between the state’s protective duties and immigration enforcement powers.

Initially there was involvement of two Junior Counsel to assist with the volume of disclosure in the matter however, one of the Junior’s subsequently took silk part way through proceedings and gained the title of King’s Counsel.  Both Junior Counsel and King’s Counsel (KC) continued to be instructed, with inevitable arguments subsequently being raised as to whether the ongoing instruction of KIng’s Counsel was reasonable, when two Juniors had been considered satisfactory at the outset of the proceedings.

Reasonable Use of Kings Counsel

A notable feature of this case was that Counsel became King’s Counsel (KC) during the ongoing litigation. This raised the question of whether it was reasonable to continue instructing the same Counsel once they have taken silk.  This is quite a unique factor of this dispute, as often the general question is whether it was reasonable to instruct King’s Counsel or not, but in this instance there was also the question as to continuity of legal representation.

In practice, the answer depends on several considerations:

Continuity and client interest – Where Counsel has deep knowledge of the case, particularly in complex or sensitive matters, continuity can be critical. The value of Counsel’s existing understanding of the legal issues involved can outweigh cost concerns.  This is a somewhat unique factor to this case, but was a significant factor taken into account.

Proportionality – Costs should remain proportionate to the issues and sums at stake. However, in cases involving human rights breaches, the complexity and significance of the issues can justify the involvement of King’s Counsel even post-appointment.  The matter of Juby and others v London Fire and Civil Defence Authority (unreported), 24 April 1990, QBD is a leading decision on the suitability of instructing King’s Counsel and set out consideration factors to take into account as including:

• The case circumstance, novelty and complexity;
• Its importance to the client;
• The amount of damages likely to be recovered;
• Wider implications in common law to other disputes or the public as a whole;
• Any particular requirements of the case, for example the need for legal advice or specialist expertise, and;
• Other reasons why and experienced or senior advocate may be required.

Proportionality factors under CPR 44.3(5) will also be taken into account when examining the issue of costs, and includes considerations as to public importance.  In cases which may individually be modest in value, but have a wide-ranging impact on public policy or in setting a precedent for other matters (which across the litigious landscape may be of significant quantum value), then it may be determined reasonable to instruct King’s Counsel to deal with novel issues.

Funding implications – If the case is publicly funded or costs are to be recovered inter partes, consideration must be given to whether the KC’s enhanced rate is recoverable and reasonable.  Rates for King’s Counsel are often double those of Junior Counsel, and in inter-partes high level disputes, it is not unheard of at the time of writing for King’s Counsel hourly rates to be up to £1,000ph in complex high value disputes in Central London, with an hourly rate of £500ph – £600ph not being uncommon.  This is a factor taken into account as part and parcel of the aforementioned proportionality factor also, and ultimately it is not necessarily the issue of instructing King’s Counsel that is the issue, but the cost of doing so, and whether it is reasonably justified.

Professional practice – The Bar Standards Board and established practice notes confirm there is no requirement to withdraw or substitute Counsel solely because they have taken silk mid-case.  As such in the subject matter dispute, the parties reach an amicable resolution whereby it was accepted after exchange of Points of Dispute and Reply, that the ongoing instruction of King’s Counsel was reasonable and these fees were recovered in full.

The decision in Coram v D R Dunthorn & Son Ltd [2024] EWHC 672 (KB) does however, demonstrate that simply because a matter is of significant importance (in this instance, involving the death of an individual due to mesothelioma) that it does not follow that the case is sufficiently complex or novel to warrant the instruction of King’s Counsel.  This is not to say however, that the instruction of King’s Counsel in relatively modestly valued matters could not be proportionate, if the circumstances and complexity warrant it.

How can ARC Costs Assist with any Disputes as to Junior or King’s Counsel Fees?

ARC Costs is a highly experienced and independent team of specialist Costs Draftsman and Costs Lawyers. As independent experts, we assist both paying and receiving parties in resolving costs disputes effectively. We also regularly assist litigants in person by providing expert advice and representation when they have received a costs order in their favour.

For receiving parties, we excel in preparing Costs Budget and Bills of Costs, providing legal costs negotiation services, and drafting Points of Reply. Our goal is to maximise your cost recovery to ensure you are not left out of pocket by the litigation process and/or as a legal firm and maximise your profitability of the case. We offer clear advice on settlement parameters to our clients from the outset, ensuring you have a realistic expectation of your potential recovery.

Likewise, when acting for paying parties, we specialise in drafting Points of Dispute and negotiating to minimise legal cost liabilities. We can also provide representation at detailed assessment hearings to challenge the costs claimed before a judge.

In respect of the reasonableness of instructing King’s Counsel, we would be happy to offer an initial objective opinion as to whether it was reasonable and proportionate to involve King’s Counsel from a costs perspective, and the prospects of recovering such fees on assessment.

If you would like more information on any of our services or wish to speak to a member of our expert costs team about your legal costs, then please do not hesitate to contact us. Please call one of our independent experts at 01204 397302, or email one of our costs experts direct on info@arccosts.co.uk.

Follow Us