A High Court judge has set £480 as the “top end” rate for QCs handling criminal work and £240 for juniors, saying that, while they may be exceeded in another case, it would not be “by very much”.
In Evans & Ors v Serious Fraud Office [2015] EWHC 1525 (QB), Mr Justice Hickinbottom was dealing with the fallout from his dismissal earlier this year of a single charge of conspiracy against six people, including three solicitors and a barrister. They had been accused by the Serious Fraud Office (SFO) of conspiring to set up companies in the British Virgin Islands and transfer to them from Celtic Energy, the freehold title of four coal mines, so as to avoid having to pay to restore the sites once coal extraction ended.
The SFO’s conduct of the prosecution came in for criticism and, in an earlier preliminary ruling, Hickinbottom J decided that the SFO was responsible for an “unnecessary or improper act or omission” that caused the applicants to incur costs, satisfying the precondition for a costs order against the SFO under section 19 of the Prosecution of Offences Act 1985. The latest ruling concerned quantum.
In deciding what level of counsel’s fees were reasonably incurred and reasonable in amount to recover from the SFO, the judge went to the guidance given by Pennycuick J in Simpsons Motor Sales (London) Limited v Hendon Corporation [1965] 1 WLR 112: “[O]ne must envisage an hypothetical counsel capable of conducting the particular case effectively but unable to or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre-eminent reputation. One must then estimate what fee this hypothetical character would be content to take on the brief…. There is, in the nature of things, no precise standard of measurement.”
In the present case, some of the leading criminal counsel involved were paid at rates of £600-750. Hickinbottom J said: “Looking at the cases [to which he was referred] as a whole, they do not support the proposition that rates at that level equate with ‘the going rate’ for even the most complex of criminal cases…
“Mr Rees QC says, from his own experience, that an hourly rate of £850 has been charged in criminal cases, including by the leading counsel who acted for the respondent in The Lord Chancellor v John Charles Rees QC; but in none of the reported cases to which I was referred does a figure of £500 or more appear to have been approved on an assessment.
“While complexity may of course warrant a higher fee, where a case involves particularly heavy hours over a lengthy period of time, that may warrant a reduction in the hourly rate to reflect the likely if not guaranteed hours involved. On the other hand, the rate must also reflect the inability of counsel to take on other work during the relevant period, if that indeed be the case.”
The judge accepted that the case warranted counsel of “particular calibre, experience and expertise”, but the rates charged were not reasonable in the context of a section 19 assessment.
“I consider that the hypothetical counsel referred to by Pennycuick J in Simpsons Motors would have reasonably been charged out at approximately £480 per hour, and his hypothetical junior at a rate of approximately £240. I stress that I consider those rates are ‘top end’ rates for criminal work: and, while I do not say that in another case they might not be exceeded – although, I suspect, not by very much – they take into account the especial experience and expertise of particularly eminent leading counsel, from which flows more efficient working than would be the case with less experienced and expert counsel.”