Counsel's fee notes

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Guidance from the Bar Council

1. Lay clients are entitled to know the basis on which fees are charged, not least so that they can protect their interests in respect of opposed assessments of costs, summary or detailed.

2. In order to assist lay and professional clients, Judges, Costs Judges and, in the event of opposed assessments of costs, lay and professional clients justifying Counsel’s fees to opposing parties, Counsel should keep careful records of the time taken on each individual item of work done, such as:

(a) Pleadings, indictments, or other procedural documents;
(b) Witness statements;
(c) Experts’ reports;
(d) Schedules;
(e) Written Advices and Opinions;
(f) Letters;
(g) Skeleton arguments;
(h) Written submissions;
(i) Preparation of Briefs;
(j) Conferences and telephone conferences and the preparation for such conferences.

3. The following further steps are also advised as a matter of good practice:

(i) When Counsel is instructed orally, including by telephone, Counsel should make a note of the nature of the instructions and of the response given.

(ii) When Counsel asks orally for further information, Counsel should make a note of the nature of the request, and of the answer if the answer is given orally.

(iii) When any particularly novel or complex issue of fact or law arises in the course of the conduct of a case, Counsel should (unless the subject is dealt with in a written advice or opinion) make a note summarising the relevant issue or issues and the research undertaken in like manner as is required by (i) above.

(iv) When a Consultation or Conference takes place, unless the professional client makes an attendance note which he sends to Counsel for approval or amendment, Counsel should make a note of the topics covered and the general nature of the advice given.

(v) When Counsel is involved in negotiations, either between Counsel or by way of leading, assisting or supporting the professional client in the conduct of negotiations, Counsel should make a note of the general nature of the involvement.

(vi) Notes made pursuant to subparagraphs (i) to (v) above should be kept by Counsel unless they are returned to an instructing solicitor.

In cases where there is not an instructing solicitor, it may be advisable to keep more detailed records.

4. When a brief fee has not been agreed and is claimed by Counsel in a sum greater than the product of an hourly rate and the number of hours actually worked in preparation of the brief, this should be recorded in a note to be submitted with the fee note. Details in the supplementary note should include, but are not limited to:

(i) The seniority, reputation and relevant expertise of Counsel;
(ii) The complexity of the case;
(iii) The amount of preparation required in advance of the hearing;
(iv) Counsel’s commitment to a fixed hearing date, if any;
(v) The expected length of the case and, therefore, the time reserved for it in Counsel’s diary;
(vi) The urgency of the matter when Counsel was briefed;
(vii) The amount of work required out of Court and in the preparation of any kind of written submission during the hearing;
(viii) The importance of the case to the parties or any of them, or to the public interest.

5. When a brief fee has been agreed Counsel or Counsel’s Clerk should keep such records as will enable a note containing the details set out at paragraph 4(i) – (viii) above to be produced on request.

6. Clients in cases where Counsel fail to keep proper records to support claimed fees may find the fees reduced. Counsel may then find that a complaint of inadequate professional service may be upheld, in which circumstance Counsel can be ordered to reduce or waive fees and/or to pay compensation up to £5,000. In addition, the Legal Services Ombudsman has power to require Counsel to pay unlimited compensation.

7. In any case in which Counsel appears properly in a privately paid case at a hearing without a brief fee having been agreed (for example on an interim application) Counsel should make and keep a record of the time spent at Court before the start of the hearing, and of the length of the hearing.