Introduction
Whether you are a Litigant in Person (LIP) or represented, Legal Costs are one of the things that become central in any kind of court proceedings. This page explores both legal costs in general and costs litigants in person are entitled to.
There are legal costs in the form of court fees, costs of instructing legal representation, disbursements, and of course the costs your opponent will be racking up.
Then, if you are an LIP, your costs – and yes, you can claim them!
Court Fees
The most simplistic (and probably cheapest) type of Legal Cost is the Court’s fees.
Whether commencing proceedings, a hearing fee, or making an Application – there are various Court Fees payable (to the Court). All of these fees are generally not too bad and can be found here.
Legal Representation
If you’re not a LIP – it stands to reason that if you’ll paying a professional you’ll need to pay professional’s fees. These can simply be placed into three categories;
Solicitors Costs
Solicitors costs are the most the most common costs, and charge an hourly rate. Solicitors are graded from A to D – A being a Partner with 8-years (or more) experience and D being a trainee. On top of this, there are geographical ‘bands’. Between the Grade and the Band, will depend on the hourly rate. Depending on the complexity of your matter will depend on the experience of the solicitor you need. The Government sets out guide hourly rates here, but ultimately what a solicitor will charge is entirely at their own discretion – but of course should be agreed in advance!
In the County and Magistrates Courts, a solicitor can advocate for you in court (advocate meaning speak to the Court). However, in the higher courts, unless your solicitor is a solicitor-advocate – they do not have what is called rights of audience and therefore representation in the higher courts also requires a barrister.
Counsel
Counsel, or specifically Barristers, are people who can advocate in any Court in the UK. Typically, whilst barristers may have an hourly rate they will work on a ‘fee’. Often working on a ‘fee’ can be more helpful than charging per hour, as you know the costs in advance. However, if the case changes or there becomes a change in scope, barristers may ask for a “refresher” fee for the extra work.
Typically barristers are instructed by solicitors – in fact they have to be, unless they are Direct Access qualified. I have written a separate page on Direct Access Barristers here.
The most senior type of barrister is a Kings Counsel or KC (formerly Queens Counsel, QC) – the most junior barrister, is as the name suggests; a Junior Barrister. Whether your opponent instructs a KC or a Junior is entirely up to them and probably their budget! Some very well known and senior KC’s are known for charging £25,000 per day for court appearances!
Experts
Experts are as the name says on the tin. Not every case requires them – but in cases do, they of course need paying!
Disbursements
Disbursements are the ancillary costs of a case. For example, postage, printing, stationary, train fares, hotels and subsistence.
Opponents’ Costs
Fairly obviously, your opponent will be racking up costs.
In the ordinary course of things, the costs of a case are dealt with at the end of the case, when the Court has decided who has won. If you have won, you will have your costs paid. If you have unfortunately lost, you will have to pay the costs of your opponent.
It is not uncommon throughout the process of litigation for opponents to make Applications to attempt to gain interim costs orders. These interim costs orders will not be the “total” costs of the case, but will relate to Applications purportedly said to be necessary.
Interim costs orders are often sought tactically rather than out of necessity – and the usual tactic is to rack up as many interim costs orders against an opponent, to attempt to achieve financial ruin before the substantive case is heard – especially in the case of SLAPPs. However, Courts are becoming wise to this – and it is possible to argue for costs to be in the case; meaning they will be dealt with at the end of the case, and if you have won and costs orders will be ‘set off’.
Opponents who repeatedly seek interim costs orders ought to have their motives questioned, and their conduct drawn to attention to the Court.
Litigant in Person Costs
Your time as a litigant in person is entitled to be paid!
However, the rules (in my view) are heavily stacked against Litigants in Person, are antiquated, and need total reform.
The Standard Rule
Under Civil Procedure Rule Part 46, the ‘default’ standard rate Litigants in Person are entitled to claim is £19 per hour. Naturally, this will be the line that solicitors are going to tow, when trying to agree costs.
My view is this is somewhat outrageous given that the average UK salary in 2024 is around £35,000 – which is around £17 per hour. Many people earn far more than this.
Higher Rates
There is some good news (sort of), which is that if you can be paid more than £19 per hour. However expect to fight tooth and nail for this – as obviously solicitors are going to be all over this one.
The technical answer is that more than £19 per hour can be obtained if the Litigant in Person can prove they have suffered loss. In case of Spencer and anor v Paul Jones Financial Services (2017) [unreported], the Court allowed a much high rate of £150 per hour. However, they claiming party was able to show a downturn in accounts.
In the case of Mainwaring –v- Goldtech Investments Limited [1997], Mr Justice Robert Walker considered the issue of financial loss against different costs claimants:
a self-employed tradesman who in a small but profitable way of business who has more customers than he can cope with and can fill every working hour to advantage; at the other extreme, a retired civil servant with an index-linked pension who finds the conduct of litigant a more interesting pastime than bowls or crossword puzzles.’
In my case I am somewhat of a workaholic…. I run different businesses in different timezones, as I explain on my about me page – so conducting litigation can be a distraction from my business, but (a) I can fit it into my limited time; and (b) I am not going to allow my businesses to suffer loss as a result of litigation, so I am going to work harder/longer to avoid that.
It seems to me that the entirety of the Court’s approach to Litigant in Person costs is entirely wrong. Being a Litigant in Person is time consuming enough as it is, and LIP’s shouldn’t have to suffer financial loss if they’re spending their time during evenings or weekends (not to mention working time) dealing with a claim.
Two Thirds Rule
Whatever hourly rate you are able to grasp, it cannot be more than two thirds of what a solicitor would have otherwise charged. At £19 this won’t be a problem – but if you’re being awarded £150/hour, the solicitor cannot have a rate of more than £225/hour.
Costs Assessment
There are two ways the Court can assess costs; whether your Opponent is the paying party, or you. One is on a Standard basis, and the other is on an Indemnity basis.
Standard Costs
Standard costs are assessed by the Court on a standard basis, and covered under Civil Procedure Rule 44.3(2)
In short, where the Court assesses costs on a Standard Basis – they need to be proven to be proportionate and reasonable.
Indemnity Costs
Indemnity Costs are covered under Civil Procedure Rule 44.3(3). In short, Indemnity Costs are basically there punitively where parties find themselves in ‘out of the norm’ cases; the costs don’t have to be proportionate – only reasonably incurred. In essence, the Court can award a higher proportion of costs against a party on an Indemnity Basis than Standard Basis – they serve as a stick to beat parties who conduct themselves badly.
This doesn’t mean the general run of the mill arguments that happen – but instead conduct which is well outside the ‘normal’ scope of litigation, which may include;
- Failure to comply with the Court’s rules
- Fraudulent or dishonest claims
- Unnecessary applications
- Bad cases
- Refusals to mediate
There are of course many more examples of where Indemnity Costs are awarded, and quite a few authorities which point both ways on when indemnity costs can be sought and when they cannot.
Indemnity costs are some of the nonsense that solicitors will threaten, but are in fact rarely awarded by the Court. Although, if you’re on the receiving end of an opponent’s solicitors; expect it to make up the concluding part of virtually every letter!
Security for Costs
Security for Costs is tactical one, and covered under Civil Procedure Rules Part 25.
In short, if a Defendant believes that the Claimant may not be capable of paying its costs of defending a claim, it can make an application for Security for Costs. In these circumstances a Claimant would be required to pay a ‘deposit’ of a certain figure into a secure account (ie that of the Court or Solicitors), until the claim is concluded.
CPR25.13 explains where a Court may make this order, but the Defendant making the application does have a requirement to satisfy the Court there is a likelihood the Claimant may not be able to pay its costs. As you may expect, this causes all kinds of arguments!
Conclusion
This is quite a lengthy page, and barely scratches the surfaces when it comes to the nuances of Court’s approach to costs, fact-based circumstances and so forth.
Certainly, as a Litigant in Person you should study the CPR on costs – but, of course, ultimately seek independent legal advice from a qualified solicitor or barrister.