Challenging Counsel’s Fees at Detailed Assessment

Paying Party Strategy and Proportionality Control

Counsel’s fees are often one of the largest components of a bill of costs. For paying parties, they represent a key opportunity to reduce exposure at detailed assessment. Challenges rarely succeed through simple objection; they succeed when tied to proportionality, necessity, and the overall value of the litigation.

This article explains how paying parties can challenge counsel’s fees effectively and how those arguments interact with wider issues of proportionality, delegation, and recoverability and conduct.

Why Counsel’s Fees Attract Judicial Scrutiny

Courts assess counsel’s fees on the same core principles that apply to all inter partes costs:

• reasonableness

• necessity

• proportionality

Even where work has been carried out, the court will ask whether the level of counsel instructed was justified by the value, complexity, and importance of the case.

This is particularly relevant on the standard basis, where any doubt is resolved in favour of the paying party.

Common Grounds of Challenge

Level of Counsel Instructed

A frequent issue is whether leading counsel was necessary. In modest value or routine claims, the court may find that junior counsel would have been sufficient.

This mirrors the wider issue of fee earner delegation, where work carried out at an unnecessarily senior level is vulnerable to reduction.

Duplication Between Solicitors and Counsel

Paying parties should analyse:

• overlapping attendances

• duplicated conferences

• solicitor time spent re-working counsel’s material

Where duplication exists, reductions can be made to one or both elements.

This aligns with broader detailed assessment paying party services strategy, where duplication is a central theme in reducing bills.

Conferences and Refreshers

Courts will consider:

• the number of conferences

• their duration

• whether multiple fee earners attended

Excessive attendance by both solicitors and counsel is frequently reduced unless clearly justified by complexity.

Proportionality of Counsel’s Fees

Even where counsel’s fees are reasonable in isolation, they may still be disproportionate when viewed against:

• the sums in issue

• the stage reached

• the outcome achieved

This reflects the modern “stand-back” approach to proportionality, where global reductions may be applied after line-by-line assessment.

The Importance of Case Value

High counsel’s fees in low or moderate value claims are particularly vulnerable. Courts expect the level of representation to reflect the financial and factual weight of the case.

This has been reinforced in recent costs decisions where the choice of expensive representation was treated as a litigation choice, not a recoverable necessity.

Interaction with Conduct and Strategy

Counsel’s fees may also be affected by conduct issues. For example:

• unnecessary applications

• over-pleading

• tactical steps that increased costs without advancing the case

These points link directly to recoverability and conduct, where unreasonable litigation behaviour can reduce otherwise recoverable costs.

Evidence-Based Challenges

Successful paying party challenges rely on:

• comparing the case to typical litigation of similar value

• identifying routine work carried out at senior level

• analysing whether the hearing required specialist advocacy

• demonstrating duplication or inefficiency

This moves the argument from assertion to structured proportionality analysis.

Tactical Timing

Counsel’s fees should be addressed:

• in Points of Dispute

• in negotiations

• at detailed assessment

Early identification strengthens settlement leverage and narrows the issues before the hearing.

This is a core part of paying party costs lawyers strategy, where exposure modelling informs negotiation.

Key Takeaways for Paying Parties

• Counsel’s fees are a primary driver of overall costs exposure

• Leading counsel is not automatically recoverable

• Duplication between solicitors and counsel is highly vulnerable

• Proportionality can reduce reasonable fees

• Conduct arguments can further limit recovery

• Early, evidence-based challenges improve settlement outcomes

  
  

Strategic Conclusion

Challenging counsel’s fees is not about disputing advocacy itself; it is about ensuring that the level of representation matches the needs of the case. When combined with proportionality, fee earner delegation, and recoverability and conduct arguments, it becomes one of the most effective tools available to paying parties at detailed assessment.