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Are inter fee-earner discussions reasonable?

View profile for Nicholas Lee
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This issue, along with multiple fee earners attending trial, scheduling outstanding actions and creating bundles, was considered by the Senior Costs Judge, Master Gordon-Saker, in Fuseon Ltd, R (On the Application Of) v Shinners [2020] EWHC B18 (Costs) (09 April 2020).

Inter-fee earner discussions and time spent delegating was said to be reasonable and recoverable. The Master said:

“Reasonable time spent in inter-fee discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and the delegate is usually now considered to be recoverable….”

However, when it came to multiple fee earners attending a meeting, the Master indicate this would rarely be reasonable:

“On the other hand, two fee earners attending on a witness or the client will rarely be reasonable, unless there is a specific reason. Lawyers should be reasonably adept, like most people, at speaking or listening and writing at the same time.”

The same logic is applied to more than one fee earner attending trial:

“For similar reasons I cannot see that more than one fee earner attending trial, together with counsel, was reasonably required save that I would allow FG, as disclosure officer, to attend the start of the trial in addition to ME. This was not a case which involved substantial documentation (114 pages of statements and 2,116 pages of exhibits) or a significant number of witnesses.”

The Master also provided some helpful guidance on items commonly challenged as not being fee earner work. The Master found that whilst the creation of a bundle is fee earner work, copying is not:

“By its appellant's notice Fuseon contends that the investigation of the Defendant's social media presence, the scheduling of outstanding action, the creation of the jury bundle, the drafting of notices of additional evidence and contacting witnesses about the trial was properly done by fee earners and should not have been disallowed as non-fee earner work. I agree entirely. In my experience this work is generally done by fee earners. However photocopying bundles is not fee earner work.”.