This is a question asked frequently by clients who have won their court case, but who have been unable to recover all of their costs from the other side.
Litigating is never cheap and at bto we are always trying to maximise our clients’ value for their money, which is why bto set up ADVantage advocacy service - more of which later!
So how can a successful litigant who obtains an award of expenses against the losing party end up significantly out of pocket?
The expenses awarded by the court are called “judicial expenses”. Judicial expenses are calculated by reference to set Tables of Fees that are commonly criticised for being archaic and out of touch with the true costs of litigating.
At a recent commercial court symposium, held to discuss concerns about supreme court commercial procedure, various legal firms voiced their concern about the gap between judicial expenses and the true costs of litigating.
The “traditional” model still adopted by a number of law firms more often than not leads to a significant under-recovery of expenses. The differential between solicitors’ fees and outlays in a court case, which include fees paid to advocates, can lead to between 25% and 75% of the total cost never being recovered from the losing party. In simple terms, one might litigate, win the case and recover only 25 pence in every pound spent in doing so.
Most litigators warn clients at the outset of any court action that they can only expect to recover, if successful, about half or less of the costs of litigating. At the commercial court symposium it appeared to be a matter of common experience that, if the traditional approach were used, a successful litigant might recover less than half of their costs.
bto seeks to provide the best value for money to its clients. The traditional model of supreme court litigation involved the instruction of local solicitors, who in turn instructed Edinburgh solicitors, who then instructed an advocate leading to “triple handling” of cases. Some 10 years ago, bto was at the forefront of moves to eliminate the “triple handling” of cases by opening its own Edinburgh office and running cases directly from its Glasgow office or Edinburgh. This move eliminated the need to have a highly qualified, and therefore expensive, solicitor dealing with the case in both Glasgow and Edinburgh.
bto is again at the cutting edge of measures to reduce the “double handling” caused by instructing both a solicitor and an advocate. In 2004 bto formed ADVantage, a “one stop” advocacy service. Clients of bto can choose to instruct the firm’s own solicitor advocates to appear rather than an advocate from the Scottish Bar, thereby improving lines of communication with the client and reducing costs.
In a recent case, I acted as a solicitor advocate in representing a client in the Court of Session. The action ran over three years. It went to legal debate over two days where large portions of the opponent’s case were successfully excluded. The case then went to a hearing of the evidence. The hearing ran for 10 days. Had the “traditional” model been followed, it is quite probable that the costs incurred by the client would have been two to three times those actually incurred. bto’s client was successful and the expenses recoverable from the losing party have been assessed by law accountants at almost 90% of the actual costs of the litigation.
| The graph summarises this striking contrast between the traditional approach to costs and what can be achieved when solicitor advocates are used. |
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Solicitors have always conducted litigation in the sheriff courts, but Solicitor Advocates have been around for over a decade now and appear frequently in the supreme courts. In 2007, there are only rare cases that justify the double handling incurred by instructing both a solicitor and an advocate. Clients have a genuine choice and can now opt to pursue or defend actions using a Solicitor Advocate in the knowledge that, if successful, they have a chance of recovering a greater proportion of their costs. An obvious advantage of using ADVantage!
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Tony Jones
(Information posted in September 2007 and may not have been updated at time of reading).