Costs orders – Hourly fees – Lawfulness of reduced rate for travel and waiting time

R (on the application of Schwartz) v Highbury Corner Magistrates’ Court: QBD (Admin) (Lord Justice Sullivan, Mr Justice Wilkie): 3 June 2009

The claimant (S) applied for judicial review of a decision of a determining officer of the defendant court to allow a reduced hourly rate for travelling and waiting time in a costs order. S had been charged with a criminal offence and instructed a firm of solicitors (X) to represent him. X wrote to S, stating that he would be charged an hourly rate of £200 plus VAT, which included all travel and waiting time.

At the conclusion of the trial, S was acquitted and was granted a defendant’s costs order. X submitted a bill of costs to the court with a covering letter explaining the firm’s hourly rate. The determining officer wrote to X stating that its general rate was appropriate for the nature of the case and the locality of the firm, but that the same rate was not suitable for travel and waiting time, as that was not subject to an uplift for care and conduct. X replied that there was no justification to reduce the hourly rate and that the officer had misapplied the law, as the hourly rate had not been enhanced. The officer’s decision letter confirmed that X would receive a reduced rate for travel and waiting time.

Held: there was an unfortunate ambiguity in paragraph 2.4 and page 21 of the Justices Clerks Society Good Practice Guide: Taxation of Costs. The last sentence of paragraph 2.4 suggested that the full hourly rate should not be charged for travel and waiting time, as it did not qualify for an uplift for care and conduct. That contradicted the guidance given for the composite hourly rate on page 21, which made clear that a reduction should only apply to enhanced hourly rates. The latter passage was a more accurate reflection of the authorities, and the first sentence of the former passage was inconsistent with that approach, R (on the application of Hale) v North Sefton Justices [2002] EWHC 257 (Admin), Times, January 29 (2002), and R v Villiers (Costs) [2005] 4 Costs LR 732 Sup Ct Costs Office applied. The determining officer was misled by the guidance, had misdirected himself and had therefore erred in law. The rate of £200 was only ever dealt with as a normal rate, not an enhanced rate.

The decision was quashed. All hours were to be charged at the rate of £200.

Application granted.

David Jonathan Sonn (solicitor- advocate, instructed by Sonn Macmillan Walker) for the claimant; no appearance or representation for the defendant.