Legal Costs Explained

What is included in Legal Costs?

As part of litigation, costs generally arise under the following headings:

• A Solicitor’s Professional Fee
• Fixed costs & Outlay: these can include Court Service Stamp Duty on court documentation (approximately 8.5% of total costs), fees of other professionals (such as expert witnesses), reports, additional expenses and disbursements.
• A Barrister’s Professional Fee: This will be furnished to the solicitor, but the client will have approved of the basis/fee at the outset of the engagement.
• VAT: VAT on the legal services delivered by a legal professional is at the standard rate of 23%.

Clarity from the outset: Setting out the fee rate and basis.

Outside of civil legal aid and criminal legal aid (where the State pays the professional fee of a solicitor and/or a barrister for individuals who are entitled to legal aid), professional fees are a private matter to be negotiated and agreed between the client and the legal practitioner.

There is no set scale of fees charged by barristers, the professional fee of the barrister is usually negotiated by the solicitor on your behalf.  The independent referral bar is comprised of approximately 2,200 self-employed barristers. Find barrister here

The Legal Services Regulation Act 2015 part 10 Chapter 3 requires clients to be provided with a certain level of detail to enhance clarity and transparency for the client in relation to professional fees and legal costs.

Under Section 150  on receiving instructions, barristers are required to provide clients (via their solicitor) with an indication of the professional fee that will be incurred, or at the very least to set out the basis on which the fee is to be calculated. The basis on which fees are calculated will be explained by reference to certain matters, to include:

• The time and labour involved in carrying out such work.
• The complexity, novelty or difficulty of the matter.
• The urgency of the matter.
• The level of skill or specialised knowledge required to deal with the matter.

Some additional protections.

• Cooling Off Period:  For 10 working days, a client enjoys a ‘cooling off’ period, where they may consider in greater detail the barrister’s proposed fee.
• Updating the fee basis: Over the course of litigation, the circumstances and nature of the work may change.  If the barrister becomes aware of any factor that would make it likely that there will be a significant increase in the costs, the barrister is obliged to notify the client (via the solicitor) as soon as he or she becomes aware of that factor.
• Written Agreement: Section 151 of the Act allows the client and barrister to enter into a written agreement concerning the amount, and the manner of payment, of all or part of the legal costs payable by the client to the barrister. Provided the agreement includes all the particulars required under Section 150 there is no need for the barrister to provide the client with the notice referred to under that section.
• Bill of Costs:  Under Section 152, a barrister, as soon as is practicable after concluding the provision of legal services, must provide the client (via the solicitor) with a bill of costs.  It will also include VAT (23% on barristers’ fees).

There is also a requirement on the barrister (through the solicitor) to provide, along with the bill of costs, an explanation of the procedure available should there be a dispute in respect of any aspect of the bill of costs and the processes to resolve those disputes.

Liability for Costs?

The normal rule in litigation is that ‘costs follow the event’, meaning that the losing party is liable to pay the costs of the winning side. It is at the discretion of the Courts to decide whether to apply this rule, and certain exceptions to the general rule apply.  

Please note that the above does not constitute legal advice and is provided to assist consumers of legal services with a broad understanding of legal costs. 

Use of Senior Counsel and Junior Counsel

While every case is different, it is common for clients involved in court litigation to be represented by a barrister or a team of barristers.

Depending on the complexity and jurisdiction (ie the court within the legal system, for example District, Circuit, High Court, Court of Appeal, Supreme Court), you could be represented by

• A Junior Counsel Barrister.  Junior Counsel barristers will have the suffix BL attached to their title, signifying Barrister-at-Law.  Your barrister will be proficient and expert in the field of advocacy before the courts, presenting your case in such a away that defends and represents your interests.  Counsel will be versed in the specifics and facts of your case, and the various areas of law that apply.

• A Senior Counsel Barrister. A Senior Counsel barrister will have the suffix SC attached to their title.  Senior Counsel barristers are those who have been approved by Government on a recommendation of a special  Advisory Committee of the Legal Services Regulatory Authority, owing to their specialist knowledge or excellence in litigation and advocacy. Senior Counsel, otherwise known as ‘silks’ are members of the Inner Bar, and generally have 15 years experience prior to applying for patents of precedence to become Senior Counsel.

Where your matter is particularly complex or where you and your advisors believe that additional expertise is merited due to matters at stake, you may be advised to have a Senior Counsel as part of your legal team.

There are many circumstances where your litigation needs require more than one of the above types of barristers. Your solicitor will assist and advise, along with Counsel, on these matters.

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