EVX v Julie Smith

Where costs are claimed from a child’s or protected party’s damages, the general rule is that the court must order a detailed assessment. A litigation friend’s agreement to contractual hourly rates does not by itself prevent assessment or make the rates irrebuttably reasonable.

To obtain the presumptions under CPR 46.9, solicitors must establish informed consent. The explanation must fairly address the unusual nature of the costs and the risk that they may not be recovered from the opposing party. A shortfall warning alone is insufficient. Hourly rates are assessed by reference to the applicable costs rules and all relevant circumstances, including the work’s complexity, supervision, experience and efficiency.

The claimant was a child whose clinical negligence claim settled for £225,000, subject to approval. Her solicitors sought approximately £28,113 from her damages for the alleged shortfall between their costs and the costs recovered from the defendant.

The settlement order directed a detailed assessment of the remaining costs under CPR 46.9, with permission to dispense with assessment if the claimant agreed. The claimant’s litigation friend did not object, but the court retained concerns about informed consent, the litigation friend’s potential conflict, and the reasonableness of the claimed Grade C rates of £235–£240 per hour.

The central issues were whether assessment could be avoided, whether the contractual rates were determinative, whether the CPR 46.9 presumptions applied, and what rates were reasonable for the individual fee earners.

1. Detailed assessment. The court declined to dispense with assessment. Under Civil Procedure Rules 1998, rules 46.4 and 21.12, costs claimed from a child’s damages are subject to detailed assessment unless a specified exception applies. The litigation friend’s consent did not remove that requirement, particularly where the court had to protect both the child and the litigation friend.
2. Informed consent. The presumptions in rule 46.9(3) require solicitors to prove informed consent as a precondition. Mere consent to the type or amount of costs is insufficient because the word informed would otherwise have no effect. The overall burden remained on the solicitors. The reasoning in McDougall v Boote Edgar Esterkin (a Firm) and Herbert v HH Law Ltd was applied.
3. Written retainer. The CFA did not determine the amount payable. The assessment was concerned with the reasonableness of the charges, and the claimant could not be placed in a worse position than on a Solicitors Act assessment. The court also regarded the assessment under rules 21.12 and 46.4 as having a distinct statutory basis. Contractual freedom did not displace the protective costs rules.
4. Unusual costs and explanation. Following ST v ZY, the word unusual in rule 46.9(3)(c) was read in the context of an inter partes assessment. The solicitor’s explanation must identify the unusual nature of the costs, here the hourly rates, and explain that they might not be recovered from the opposing party. Warning of a shortfall, giving estimates, or obtaining approval of the inter partes settlement did not satisfy that requirement.
5. Reasonableness and rates. The claimed junior rates were unusual and, independently, unreasonably high. The Guideline Hourly Rates were a relevant starting point, although not binding. The claimed rates substantially exceeded the applicable Grade C guidance and approached Grade A rates. The work was generally supervised, involved substantial counsel input, and was not exceptional. The court rejected the contention that the presumptions were irrebuttable and held that the rates required further reduction.
6. Individual fee earners. Equivalent experience may justify a higher grade despite limited formal qualification, but the experience must be demonstrated and the indemnity principle applies. Ms Causey’s reasonable rate after CILEX qualification was £210 per hour; Ms Doherty’s and other fee earners’ rates and the treatment of routine schedule work required further information or assessment.

First-instance decision. No prior appellate decision concerning this claim is stated in the judgment.