Budgeting for barristers

Bar Council research conducted last year showed that barristers were struggling with costs management. Nearly two-thirds of the 384 civil litigation barristers surveyed had been required to provide a costs budget. Of these, half reported experiencing issues with providing their professional client with the required information, including having insufficient information to estimate costs accurately before the start of a case.

The report said: ‘Some respondents even reported submitting budgets to solicitors without having seen the papers.’

A third of respondents felt their work had been adversely affected by court-approved budget restrictions, including no longer being instructed for work due to the budget failing to provide for their costs, or being required to work for free due
to court reductions.

Planning ahead

This issue came up recently
at a roundtable hosted by the Association of Costs Lawyers to mark the second anniversary of costs management, which was attended by leading judges and practitioners in the field.

Nicola Greaney, who practises from 39 Essex Chambers, said that barristers are used to planning ahead in a more limited way – for example, they are asked, ‘How much time do you think you will spend on this advice?’ – but not so much to thinking right to the end of the case and how much time they are going to need.

She said: ‘People are getting used to it, but need to get more used to it. In our chambers, for example, it is not an entirely new area, because quite a lot of us
do legal aid work, where we
are used to having to put in our hours for high-cost case plans, and in that sense I do not find it very different.’

Mr Justice Warby – who was
a head of chambers only a year ago – recognised that having
an overall case plan was a new experience for most barristers. ‘You are a sub-contractor, and what you get to do on a case on the whole is not dictated by
you: it is dictated by the main contractor. You are not typically asked, for the purposes of case preparation, to forecast how much time you will be spending on phases of litigation.’

Different approaches

I have found chambers are embracing the challenge in different ways. One has come up with a massive matrix covering different barristers and cases, and all the various types of instructions that they expect to get. The solicitor will come to them and ask for advice on, say, quantum in a clinical negligence case, and they simply look down the matrix and quote that way.

In another chambers, the senior clerk and junior barrister, along with the lead solicitor and the main junior from the firm of solicitors, sat down and revisited the entire budget, comparing against what the court had allowed. Did they need the QC
or grade A solicitor doing that piece of work? Were that many fee earners really required?
We spent about five hours
going through the budget, and
it worked. Both the chambers and the solicitors are now able
to monitor the budget knowing exactly what their allocated spend is, and what they have agreed that they should do.

But this worked because it
was a substantial case with a substantial budget; how will
it work in a standard case?

Warby J told the roundtable that he had also seen an increase in ‘package deals’ for barristers over recent times – that is, a single fee covering both silk and junior – which
he considered partly the result of market pressures, but also associated with cost management.

He said: ‘I had one the
other day, where I had to set
a cost, and there was argument whether you needed a silk at all. Therefore I said, “How much of this is the junior and how much is the silk?” and I was told,
“That is the fee”.’

This is a novel issue for barristers, but one they
cannot shy away from. I have regularly preached that costs management is a team exercise, and it is vital that the team includes counsel. SJ

Sue Nash is chair of the Association of Costs Lawyers (ACL)

@CostsLawyers