K v K (Wardship: Taxation of Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Family Division |
CAZALET, J SITTING WITH DISTRICT JUDGE WHITE AND MR A GIRLING AS ASSESSORS
Taxation of costs in wardship proceedings – solicitors' hourly rate – relevance of London Solicitors Litigation Survey in 1992 – application of survey figures to a spread of years – appropriate number of chargeable hours – proper approach of taxing officer to survey evidence.
Central London solicitors represented the defendant mother in wardship proceedings which commenced in 1986 and were discharged in 1994 when an order for a Legal Aid Act taxation of their costs was obtained. In drawing their bill of costs the solicitors took as their starting point the figures produced by a survey conducted in 1992 by the London Solicitors Litigation Association. They then adjusted the figure by applying the Retail Price Index to produce a range of figures between 1986 and 1994 which they then averaged and claimed partner's time for the years 1986 to 1990 at £80 per hour and articled clerk's time at £39 per hour. For the years 1991 to 1994 the rates claimed were £111 and £49 respectively. On taxation the district judge applied those rates which had historically been allowed in the Family Division for each year from 1986 to 1994 allowing figures for the partner ranging from £33 per hour in 1986 to £80 per hour in 1994 and for the articled clerk from £15 per hour to £40 per hour. No issue was taken on the care and conduct mark-up of 75 per cent but the solicitors applied for review on the basis that hourly rates allowed did not constitute reasonable remuneration. At the time of the taxation the district judge relied on the decision of Cazalet, J in L v L[1994] 2 FCR 185 which preferred the historical rates allowed in the Family Division to the results of the survey. By the time of the review the Court of Appeal had reversed that decision in L v L (Legal Aid Taxation)[1996] 2 FCR 193.
Held – Had the district judge had available to him the decision of the Court of Appeal his own decision would have been different. The rates allowed by him did not constitute reasonable remuneration. It was not well established that a taxing officer should look at the general expense rate of solicitors practising in the field in a particular area. The expense rate was not of itself determinative and the weight to be attached to it was a matter for the taxing officer who should weigh any survey evidence against the figures claimed and his own general knowledge and experience in order to come to a conclusion as to a reasonable hourly rate. The hourly rate would fluctuate depending on the number of hours chargeable in the course of a year. Although the Law Society's "Expense of Time" calculation referred to 1,100 chargeable hours the London survey was based on 1,200
chargeable hours annually and this was likely to be a fair average figure for a fee-earner in family work. The calculations provided by the solicitors for their own individual hourly expense rate was not computed in the manner suggested in "Expense of Time" but it was clear that the practice had a relatively low overhead rate. Each taxation should be approached as an individual exercise of discretion, and applying these factors to the present, bill rates would be allowed in 1986 for the partner of £55 rising each year until 1994 when the rate would be £94. The articled clerk would be allowed £24 rising to £41.
Statutory provisions referred to:RSC Ord 62, r 12(1).
Cases referred to in judgment:Company, Re A [1995] 2 All ER 155.
Eastwood, Re [1975] Ch 112.
Johnson and Others v Reed Corrugated Cases Ltd [1992] 1 All ER 169.
KPMG Peat Marwick McLintock v HLT Group Ltd [1995] 2 All ER 180.
L v L (Legal Aid Taxation), Re[1994] 2 FCR 185 (FD); [1996] 2 FCR 193 (CA).
Leopold Lazurus Ltd v Secretary of State for Trade and Industry (1976) 120 SJ 268; The Times, 9 April.
R (Costs) (Child Abduction), Re[1996] 2 FCR 324.
R v Wilkinson [1980] 1 WLR 396; [1980] 1 All ER 597.
Martin Farber for the solicitors.
MR JUSTICE CAZALET.This is a review of the taxation of the costs of the defendant mother incurred by her solicitors in the course of representing her during wardship proceedings. These latter began in February 1986 upon the plaintiff father's application. They were concluded on 17 June 1994 when the wardship was discharged. At all material times the defendant was represented pursuant to the terms of a legal aid certificate; at the final hearing on 17 June 1994 an order for the defendant costs to be taxed in accordance with the provisions of the Legal Aid Act 1988 was made.
The plaintiff and the defendant were formerly married. Upon the breakdown of their marriage issues concerning the child's removal from the jurisdiction, care and control, as well as religious and educational upbringing were contested. The defendant is a Roman Catholic, having originated from Mexico. The plaintiff is a Muslim of Egyptian/British nationality. The detailed facts of the case are not relevant for the purpose of the review before us. Suffice it to say that the bulk of the contested litigation took place at the outset of 1986. The matter rumbled on with sporadic applications and activity between 1987 and 1992 and then flared into life...
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