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Legal Costs R e c o v er a bi l i t y of Agent Fees Despite persuasive opinion backed by unreported authority, there is seemingly still a bone of contention between parties with regard to the recoverability of external agency fees as a disbursement or base cost; with the potential of an added success fee in a hybrid of cases pre-Jackson recoverable from the Defendant (the Claimant in cases post-Jackson). So, what is the present position and on which side of the fence should parties be falling when it comes to agency fees? When establishing how certain cost elements should be recovered from the paying party, we should refer back to the purpose of the Woolf Reforms. Following Lord Woolfs’ review, the CPR was implemented to ensure compliance with the ‘overri- ding objective’; to make the Civil Justice System accessible, fair and efficient and to do so through rules which were simple. However, as is ever the case in law there is always room for ambiguity and Lord Woolf’s reforms are no to the first edition Welcome different. of Inside Law for 2014. Even in these post-Jackson days when considering external agency fees incurred, such ambiguity can still arise. Smith Graham v Lord Chancellor (unreported) established the principle specifically in respect of agency fees. Smith Graham allows us to review the initial consideration of outsourcing fee earning work and accounting for the same as a base cost, (incurring a potential success fee) as opposed to a disbursement. Smith Graham conside- red the fees of an enquiry agent (retired police Officer) which were claimed at an enhanced fee earner’s hourly rate rather than at the invoiced amount as a disbursement. LJ Hallett determined that if the work done was appropriate for a fee earner to carry out, then this would be chargeable at an hourly rate; however an enhancement above that of a Grade C fee earner would need to be considered on a case by case basis. LJ Hallett focused on the element of the work done by the agent in determining the recoverability of the cost incurred. 8 Regular readers can’t help but to have noticed that we introduce a bright new look with this edition - with our striking cover story coming from The sub-focus should be on the Slater & Gordon’s upon the Benson. for the purposes type attend Tracey client of work and the ultimate control over of preparing a statement and any other Tracey the work being done. Alternately, an offers her of fascinating account The the case is type fee earning work. of same which amongst agent is a person who has authority to spawned “Cash for as K.O.” headlines carried out determined work to be the tabloids by late a solicitor, legal executive or a clerk last year. act under the instructions of another. The fundamental control held is of the for whom a direct charge for the work Three fee earner. In terms of instructing an quarters-on would the dust continues claimant. done and be made to the to settle following agent to obtain a witness statement, the Fee Jackson reforms could be established earning work or a translator to translate documents as ‘taking instructions, interviewing and liaise with the client; is all work that witnesses, ascertaining the prosecu- fee earners would usually undertake. A tion case,…preparing and perusing fee earner must also ensure that Paul they Reason, documents…conferences…views… Managing Director, R and waiting Ltd etc’ (Legal Aid in have the correct ‘resources, skills and travelling Costings procedures to carry out [their] clients instructions; and the service [provided must be] competent, delivered in a timely manner and take account of… needs and circumstance’ (Solicitors Code of Conduct O(1.4) & (1.5)) It would be uneconomical and against such code for a firm of solicitors to turn down work purely as a result of langua- ge barriers which may arise and poten- tial distance issues. In this circumstan- ce it would be perfectly reasonable for a fee earner to delegate translation work, and liaise directly with the client and Criminal and Care Proceedings Cost Regulations 1989 Reg. 6) There are many other times when de- legation of work would be to both the client and fee earners’ advantage such as attending upon additional witnesses to take statements; instructing medical agents to collate and paginate medical records; agents to attend upon immo- bile clients for purposes of obtaining further details to support the claim in- cluding saving the fee earner potential considerable travel time; site visits to obtain evidence in relation to locus;