High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Background

"It is recognised that when fixing what the actual rate should be in Northern Ireland it is appropriate to have regard to scales prescribed in England and Wales. However, it is also recognised that it is important that like is compared with like. There are significant differences in the systems which operate within the two jurisdictions. Moreover, a number of cases that fall in the fast track system in England and Wales would otherwise lie to the high Court in Northern Ireland. It would stand to reason that fewer fast track cases could be dealt with at any time leading to less remuneration. Do you agree? Moreover overheads and hourly rates are distinctly higher in England and Wales. In Northern Ireland the established solicitor's hourly rate for 1996-97 was £61.50 as compared to an average hourly rate in England and Wales of £115.88-£145.10 for 2001 (assistant solicitor to partner respectively).

"We had before us and debated a wide range of submissions and our conclusions were arrived at after taking into account a number of considerations, some of which are to be found in the final report of [the Civil Justice Reform Group] at paras 79-83. We summarised these considerations as follows.

1. Professional services require a fair and reasonable return for work done.

2. It is proper to have regard to any scales prescribed for England and Wales for work that appears to be comparable.

3. The [Civil Justice Reform Group] expected the advantage of the Northern Ireland civil justice system being less expensive that that in England and Wales to be maintained in the future, and that the rules committee was to be alert to keep the costs of litigation in the County Courts in Northern Ireland as economical as possible, consistent with the need to ensure that professional services are properly remunerated. We considered that echoed the comments of the Lord Chief Justice in Re C & H Jefferson when he observed that the County Court should be a court "in respect of whose proceedings the costs and fees should be both moderate and ascertainable." [1998] NI at 409.

4. We sought to maintain the principle that there should be a measure of proportionality between the amounts awarded and costs.

5. Wherever possible we sought to simplify and, if necessary clarify, the cost scales, many of which seemed to be no longer relevant to present day litigation patterns. For example, in the Equity scales seven pages of obsolete provisions have been removed; by reducing the number of bands in many scales to seven and providing that wherever possible the same fees should be allowed in each scale.

6. In a number of areas we made no change other than to increase the scales, or the amounts specified for certain categories of ancillary procedures by 4.3% being the estimated rate of inflation since the last increase came into effect in December 1999 until the end of April 2002. That date was chosen as we initially hoped to complete our review by that time.

7. In Re C & H Jefferson the Lord Chief Justice commented that the scales "are largely related to the amount at stake in the proceedings and operate on the swings and roundabouts principle: in some cases solicitors and counsel may be fairly handsomely paid for a case which does not involve a great expenditure of time and effort, in others they may have to do a great deal of work for a very modest reward". The swings and roundabouts principle is fundamental to the operation of the scale costs system. By its very nature any system of scale costs cannot provide for the circumstances of every individual case which may vary widely. We considered the operation of the swings and roundabouts principle at considerable length on an number of occasions, taking into account the various submissions made to us. Whilst we were entirely satisfied that the swings and roundabouts principle is a fair one and should be preserved, nevertheless we also recognised that in Northern Ireland the majority of awards in the County Court are for £5000 or under (89% in 2000). Therefore the scope for the benefit of the swings and roundabouts principle taking into account larger awards is more limited, and we therefore sought to weight any increases towards the lower end of the scales.

8. Whilst the majority of cases heard in the County Courts are road traffic accidents and other straightforward personal injury cases, there are a significant number of cases which are particularly complex and demanding in terms of attention and preparation, and these tend to distort the operation of the swings and roundabouts principle because the cost of preparing them can substantially exceed the scale costs permitted. We recognised that this was a legitimate concern and decided to provide for such cases by providing for an uplift of 1/3 on the scale if certain conditions were met, including the cause of action coming within a statutorily defined category and the judge retaining a discretion whether or not to certify the uplift.

9. Throughout our deliberations we looked at each proposed increase in the overall context of the proposed changes in the scales or in the rules to ensure that the changes were balanced and took into account the effect of individual changes."

The case for the applicants

"We tested whether the various proposals would constitute fair and reasonable remuneration by assessing what might be the result if cases were subjected to taxation using the accepted principles. During these discussions we had regard to the Law Society's submissions as to the appropriate hourly rate, as well as that allowed by the Taxing Master. We also had regard to the information contained in the report prepared by Paul Kerr for the Law Society."

1. Whether the rules committee had persisted in the error in paragraph 10 of its consultation document;

2. Whether the rules committee accepted in full or at all the contentions of the Law Society on paragraph 10 of the consultation document;

3. What hourly rate underpins the new scales;

4. What number of hours are notionally assigned for the completion of a solicitor's work in County Court litigation;

5. Whether any hourly rate underpins the new scales.

Bates v Lord Hailsham

"The function of the committee is to make or refuse to make a legislative instrument under delegated powers. The order, when made, will lay down the remuneration for solicitors generally; and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of representative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legislation and considering objections (see, for example, the Factories Act 1961, Schedule 4), I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given. I accept that the fact that the order will take the form of a statutory instrument does not per se make it immune from attack, whether by injunction or otherwise; but what is important is not its form but its nature, which is plainly legislative."

The scope of permissible challenge

"… (1) there is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgment is such a decision. And (c) procedurally, the grant of leave in such cases will depend upon prima facie evidence that something has gone wrong. The respondent may then seek to demonstrate that it is not so and that the decision is an unalloyed exercise of an intrinsically unchallengeable judgment. If the respondent succeeds, the application fails. If the respondent fails, relief may take the form of an order of mandamus to give reasons, or (if a justiciable flaw has been established) other appropriate relief."

Were the reasons given inadequate?

"Ultimately, the basic structure of the new scales was arrived at by applying the highest fee on the previous scale to each of the new bands and adding 4.3%. Some of the figures were then rounded off or adjusted. This results in smaller increases in some cases, but larger increases in others, an approach which we felt provided a balanced result overall when the distribution of increases across the scales as a whole is considered."

Conclusions