COST BITES 223: HOW MUCH DOES AN UNSUCCESSFUL APPLICATION TO ADDUCE EXPERT EVIDENCE COST? £111,616 (APPROXIMATELY): (OH, AND PLUS YOUR OWN COSTS)

I sometimes have to remind people (and remind myself) that one of the aims of this series is to keep an eye on costs awards that are actually made at hearings at trial.  This provides an insight into what is going on in the courts on a day to day basis.  It enables litigators to have some idea of costs that will be awarded, and to be able to advise clients of the potential costs that will be recovered if they are successful, or they will be ordered to pay if they are not.  The judgment of Mr Justice Fancourt in Cohen & Ors v Co-operative Group Ltd & Ors (COSTS) [2025] EWHC 565 (Ch) is an example  of costs being assessed where both sides to an application have leading and junior counsel.

“Looking at the matter in broad terms, to reflect all the points that have been raised, bearing in mind the serious nature of the application and the need to deal with it thoroughly, I consider that the elements of the solicitors’ costs should be reduced by one-third, to reflect what I consider to be unreasonably high amounts of time sought to be charged for multiple fee-earners.”

THE CASE

The claimants had been unsuccessful in applying for permission to rely on two different type of experts, the judgment is considered in detail here.

The judge then summarily assessed the costs that the losing claimants had to pay.

THE JUDGMENT ON COSTS

1. 1. The grand total of the respondents’ costs is £137,492. The claimants’ grand total was slightly greater, but of a similar magnitude. The first question that I ask myself is whether a grand total in that amount is unreasonable or disproportionate in relation to the nature of the application. I accept that this is heavy litigation. I perfectly accept that it is a suitable application to have leading counsel on each side presenting it. The application itself, though only an application to rely on expert evidence, was not a straightforward one, it raised some tricky issues that needed to be considered carefully. Nevertheless, my impression is that a grand total in the region of £140,000 is higher than one would expect to be reasonable on the standard basis.

1. 1. Looking then into some of the detail of the statement of costs, to understand why the total is that large, counsels’ fees and travel expenses, none of which are in dispute, amount to just under £61,000, which means that the solicitors’ profit costs are in the region of £76,000 for the application.

1. 1. What is said on behalf of the claimants is that in a number of categories there are excessive numbers of hours that are being billed for attendances on client, or on the court, or counsel, and that the work done on documents is excessive. For example, attendances on others, which is either court or counsel usually, is an aggregate figure of 22 hours. One can understand there will be significant attendance on counsel. It is the sort of litigation that involves teamworking on each side. Nevertheless, 22 hours is a high figure for that component.

1. 1. Then an issue is raised about the charge for solicitors attending the hearing. There are three fee earners who are charged for, two at grade A and one at grade B, I think. What is said is it is not necessary to have three solicitors attending, or rather it is not reasonable to expect the claimants to pay for the respondents to have three attending, when there are two counsel instructed to attend.

1. 1. As for work done on documents, without descending too much into the minute detail, the consistent objection raised by the claimants is that a very large number of hours is spent considering the application on receipt of it and what should be done about it, and then a large number of hours spent considering and refining the witness statement in response and in preparing the brief to counsel, preparing the statement of costs, a strikingly high number of hours by the specialist costs lawyer involved in that work.

1. 1. Looking at it in overall terms, I accept that the amount of hours charged in various categories is unreasonably high. That is not to say the hours were not actually spent by numerous fee-earners but the question is what is properly chargeable to the paying party, not what is properly billable to the solicitors’ clients.

1. Looking at the matter in broad terms, to reflect all the points that have been raised, bearing in mind the serious nature of the application and the need to deal with it thoroughly, I consider that the elements of the solicitors’ costs should be reduced by one-third, to reflect what I consider to be unreasonably high amounts of time sought to be charged for multiple fee-earners. There is no adjustment to counsels’ fees and disbursements. Therefore, two-thirds of the figure of approximately £76,000, whatever it is in fact, is the amount which I will allow on this summary assessment, and whatever that figure is can be added to the figure for counsels’ fees and disbursements to obtain the total assessed cos