A Housing Disrepair bill includes a barrister’s fee, and the Point of Dispute comes back: “counsel was unnecessary. This was a straightforward low-value disrepair claim which could and should have been dealt with by the solicitor.”
Sometimes that is a good point. As a general proposition it is not, and neither is its opposite.
Housing Disrepair claim ≠ counsel unnecessary. And counsel instructed ≠ counsel’s fee recoverable.
There is also one thing worth knowing before any of this is argued: counsel’s fees are not governed by the Guideline Hourly Rates in the way solicitors’ fees are — which does not mean the fee cannot be reduced. The Court of Appeal put both halves in a single sentence, and it is the sentence to have to hand.
Athena Capital: no guideline rates, but still reasonable and proportionate
In Athena Capital Fund Sicav-Fis S.C.A. & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061, decided on 26 July 2022 by Peter Jackson, Males and Birss LJJ, the court said at [7]:
“Counsel’s fees are not subject to guideline rates in the same way that solicitors’ fees are, but it is nevertheless important to stress that, whatever clients may be prepared to pay their own counsel, only a reasonable and proportionate fee may be recovered from the other side.”
That disposes of two bad arguments at once.
| Bad argument | Why Athena answers it |
|---|---|
| “Grade A is £295 an hour, so counsel should be priced against that” | Counsel does not operate under the guideline tariff |
| “There is no guideline for counsel, so the fee cannot be reduced” | Only a reasonable and proportionate fee is recoverable from the other side |
| “The client agreed to pay it, so the Defendant must reimburse it” | The court expressly separated what a client will pay from what is recoverable |
That last row matters most in practice. A claimant may be liable to counsel for £1,200 — which establishes the indemnity position and nothing more. Inter partes assessment asks a different question: what is reasonable and proportionate for the paying party to bear?
The myth worth killing: “fit for counsel” is not a certificate
PD 44 paragraph 5.1 provides that when making a costs order the court may state an opinion as to whether the hearing was fit for the attendance of one or more counsel, and that the court conducting the detailed assessment will have regard to any opinion stated.
Paragraph 5.1(2) then says the court will generally express such an opinion only where:
- the paying party asks it to do so;
- more than one counsel appeared for a party; or
- the court wishes to record its opinion that the case was not fit for the attendance of counsel.
Two things follow, and both are regularly got wrong.
Absence of an opinion is not a finding
There is no requirement for a positive certificate. Look at the three listed circumstances: every one of them is either contested or adverse. The mechanism is not designed to produce routine approvals, so “there is no certificate, therefore counsel was unnecessary” does not follow.
But silence is not approval either
The mirror error is “the judge did not criticise counsel, therefore the fee is recoverable.” That does not follow either. Necessity, amount and proportionality all remain for assessment.
An adverse opinion cannot be ignored
Where the order records that the case was not fit for counsel, the assessing court will have regard to it, and a generic Reply written as though it does not exist will not survive. Check what the opinion actually covered — it concerns the hearing, so counsel’s earlier drafting or advice still falls to be assessed on its own facts. Equally, a reasonable drafting instruction does not establish that counsel also had to attend every later hearing. Each instruction needs its own rationale.
The category is not the answer
One disrepair file has admitted defects, agreed repairs, no proceedings and an early settlement. Another has disputed notice, contested causation, structural defects, competing experts, an allegation that the mould is lifestyle-related, an access dispute, contested pleadings, Part 36 and a trial.
Deciding whether counsel was reasonable by applying the label Housing Disrepair makes as little sense as deciding fee earner grade that way — the same discipline that runs through defending senior fee earner rates applies here. The category neither justifies nor excludes counsel. The file does.
And low damages do not answer it either
£2,000 damages against a £750 counsel fee looks bad stated that way. But disrepair claims also deliver repairs, and may involve technical liability, contested expert evidence, non-monetary relief, paying-party conduct, vulnerability and procedural complexity.
The reverse holds equally. The presence of repair relief does not make every counsel fee proportionate. The claimant still has to say why counsel was reasonably required for that task.
Three questions, answered separately
| Stage | Question |
|---|---|
| Necessity | Was there a reasonable need to instruct counsel for this work? |
| Scope | Was counsel used for work justifying barrister involvement, or for something the solicitor could reasonably have done? |
| Amount | Even if properly instructed, was this fee reasonable and proportionate? |
A paying party can accept counsel was reasonably required and still challenge £1,500 as excessive. A £500 fee can be irrecoverable because there was no reasonable need to incur it. Running the three together is how a defensible fee gets lost.
What might reasonably justify counsel
Drafting
Particulars of Claim, Replies, amendments, applications, skeleton arguments. Defensible where the case involves difficult notice, causation, competing statutory duties, limitation, technical expert evidence, access allegations or unusual remedies. Not every pleading needs counsel — a straightforward claim may reasonably be drafted by the conducting solicitor, and that is the most commonly disputed fee in this area.
Advice on liability
Where liability is genuinely uncertain: whether notice was sufficient, whether particular defects fall within the repairing obligation, causation disputes, interaction between duties, awkward evidential problems. A generic advice confirming what the solicitor already knew is far more vulnerable.
Advice on quantum or settlement
Difficult valuation, unusual loss, complex repair terms, Part 36 with real consequences, settlement where non-monetary relief matters. But counsel advised on settlement is not an answer — what made the decision difficult enough to need specialist input?
Conferences
Justifiable where they bring together solicitor, client, counsel and expert evidence on contested liability or a difficult settlement decision. A conference repeating advice the solicitor has already given attracts a duplication challenge.
Hearings
Contested applications, allocation and case management where genuine issues arise, interim hearings, disposal hearings, trials. The existence of a hearing is not itself the justification — which is precisely why PD 44 gives the court a mechanism to express a view.
The evidence the rules already require
Counsel’s fees are unusually well covered by the procedural rules, and claimant firms should use that.
- PD 47 paragraph 5.2 — on commencing detailed assessment the receiving party must serve copies of the fee notes of counsel and of any expert in respect of fees claimed in the bill.
- PD 47 paragraph 13.12(i) — the papers filed in support include instructions and briefs to counsel arranged in chronological order, together with all advices, opinions and drafts received and responses to those instructions.
So when a paying party says counsel was instructed unnecessarily, the brief is already going to be in front of the court. That is an opportunity if the instruction identified a real problem — “advise on disputed notice and whether the landlord’s proposed works dispose of the pleaded claim” — and a difficulty if the file shows nothing beyond “counsel advice”.
An instruction does not need to be written for a future costs judge. It should let a reader see what the issue was, what material counsel had, what counsel was asked to do and why.
The fee note evidences the charge, not the entitlement
Barristers issue fee notes rather than invoices, and the document should be read for what it evidences rather than dismissed because the heading differs — counsel, chambers, date, brief fee, conference, advice, drafting, VAT. It should agree with the bill.
What it cannot do is establish that the fee was reasonable inter partes. That is a separate question and always was.
Multiple fees need separate justification
Where the file shows counsel drafting, then advising on an offer, then attending a hearing, then advising again, do not defend the four globally. Ask of each: what changed, what was counsel asked to do, could the earlier advice have covered it, did this arise from a new issue?
The first fee can be entirely reasonable and the fourth duplicative.
Solicitor and counsel duplication
Some overlap is unavoidable — counsel needs instructions, the solicitor must understand the advice, and the client still needs advising by the solicitor. The vulnerable pattern is the solicitor researching the issue, drafting the document, sending it to counsel, counsel redrafting, and the solicitor then substantially repeating counsel’s advice.
The answer to “the solicitor was Grade A, why was counsel needed as well?” is that the roles differ: the solicitor conducts the litigation, manages the evidence, advises throughout and negotiates; counsel gives specialist advice, pleads and appears. Where both did substantially the same work, the challenge has force.
Counsel can be the cheaper route
The cheapest individual fee is not always the cheapest way to run the case. Where an issue would otherwise take a solicitor several hours of research, drafting and revision, a focused instruction may resolve it more efficiently — which is a real answer to “the solicitor should have done it”.
It is not a licence to outsource ordinary file handling. Counsel should be solving an identified problem, not making routine case management decisions or reviewing routine correspondence.
Brief fees and hearing length
Comparing a £900 brief fee with a 45-minute hearing misses preparation — reading the pleadings, reviewing the evidence and expert material, preparing submissions, dealing with authorities, conferring, attending beforehand.
But “the brief includes preparation” is not a blanket defence. The preparation reasonably required depends on the case, and a short straightforward application may not justify a substantial brief fee.
If the hearing settles or is vacated
Preparation already done is not automatically wasted. But establish when counsel was booked, when the fee became payable, what preparation had occurred, when settlement or vacation happened, and whether any fee was refunded or reduced. Claiming the original figure without checking the actual liability is an indemnity principle problem as well as a reasonableness one.
Where the need for counsel came from
Sometimes a file only becomes complex because of how it is defended — an unusual defence raised late, a shifting notice position, an application made necessary, an expert issue escalating, settlement wording becoming contested. CPR 44.3(5)(d) brings additional work generated by the paying party into the proportionality assessment, and landlord conduct can justify additional costs.
The chain still has to be shown: event, new legal problem, instruction, reasonable fee. “The Defendant behaved badly, therefore counsel is recoverable” is a label.
The same discipline applies to the other cross-references. Technical expert evidence may reasonably need counsel’s consideration when advising or pleading, but a surveyor’s report does not automatically require it — the expert question and the legal question are separate, and the recoverability of the report itself is dealt with in our guide to surveyor fees. Vulnerability may make advice, conferences or hearing preparation more complex, but it does not by itself justify counsel — the analysis is in our guide to additional work caused by vulnerability.
More than one counsel
PD 44 5.1(2) identifies the appearance of more than one counsel as a circumstance in which the court will generally express an opinion. That is a signal. A routine disrepair matter with leading and junior counsel would need a strong explanation on the file, recorded at the time.
“Reduce counsel to £250” is not an analysis
Where the Point offers no comparator, no reasoning, no criticism of the scope, the preparation or the hearing length, the proposed figure is assertion. That does not mean the fee claimed must be allowed — the receiving party still has to present a defensible fee — but assessment should not become claimant says £750, Defendant says £250, split it.
The relevant factors are the nature of the work, complexity, the amount at stake, the importance of any non-monetary relief, counsel’s seniority, preparation required, volume of material, urgency, hearing length, responsibility and the specialist expertise needed.
In the bill
Avoid “Counsel fee — £750”. Make the work intelligible without becoming argumentative:
- Counsel’s fee for drafting Particulars of Claim following disputed liability and notice — £750.
- Counsel’s brief fee for contested case management hearing on [date] — £650.
- Counsel’s written advice on Defendant’s Part 36 offer and outstanding repair terms — £500.
Precedent S includes counsel’s fees as an expense category, which makes them easy to isolate — for both sides. Correct coding establishes nothing about recoverability.
Answering the Point
Take the standard challenge to a drafting fee. A weak Reply says counsel was reasonably instructed and the fee is reasonable, which answers nothing. A strong one works through why counsel was instructed, what counsel did, why it was not duplication, what supports the fee, whether the amount is reasonable, and — where attendance is challenged — whether any PD 44 opinion exists.
The proposed disallowance of counsel’s fee is not accepted. Counsel was instructed to draft the Particulars of Claim in circumstances where liability and notice remained disputed and the Defendant challenged the cause and scope of the alleged defects. Counsel was provided with the expert evidence, Protocol correspondence and the Defendant’s response, and was instructed to settle the pleading addressing those issues.
The instruction was therefore not routine drafting duplicating the solicitor’s work. The fee is supported by counsel’s fee note and reflects the work undertaken. The paying party has not identified any basis for its proposed figure or explained why that amount would represent a reasonable fee for this work. The receiving party accepts that counsel’s fees remain subject to reasonableness and proportionality, but does not accept that counsel was unnecessary simply because the underlying claim concerned Housing Disrepair.
On a brief fee challenge the analysis shifts to what the hearing involved, the bundle, preparation, submissions, any skeleton, any PD 44 opinion, the fee note and the outcome. If the hearing was genuinely straightforward and preparation minimal, a reduction may be the sensible position — the concession that makes the rest of the Reply to the Points of Dispute credible.
When to concede
- routine pleading that did not reasonably require counsel;
- advice duplicating what had already been given adequately;
- repeated opinions with no material development between them;
- a simple application the solicitor could have handled;
- a disproportionate conference, or an excessive fee for straightforward work;
- an unexplained brief fee, or a missing fee note;
- an instruction unsupported by anything on the file;
- two counsel without justification;
- a hearing expressly recorded as not fit for counsel;
- a fee claimed despite a refund or reduced liability after settlement.
A credible position does not defend counsel because the firm always instructs a barrister. It defends the instruction because this file reasonably required it.
An audit before the bill goes out
- What was counsel instructed to do, and what issue justified specialist input?
- Could the solicitor reasonably have done it?
- Was counsel instructed more than once, and what changed between instructions?
- Is any of it duplicated with the solicitor’s work?
- Are the instruction, the work product and the fee note all on file, and do they match the bill?
- Is VAT right, was the fee actually payable, and was any part refunded?
- If a hearing was attended, did the court express any opinion under PD 44 paragraph 5.1?
- Was more than one counsel instructed, and is that justified?
- Is the amount reasonable for the work and proportionate in the context of the claim?
The question that decides it: what did counsel add that made this a reasonable litigation expense? If the file cannot answer, the paying party will.
Key takeaway
Four stages, kept apart:
- Need — why was counsel reasonably required?
- Role — what did counsel actually do?
- Evidence — do the instruction, work product and fee note support it?
- Amount — what reasonable and proportionate fee should the paying party bear?
The question is not whether a barrister was instructed. It is whether this instruction was a reasonable and proportionate cost of conducting this claim.
We prepare and negotiate Housing Disrepair costs for claimant solicitor firms, including counsel fee disputes. Has the Defendant said counsel was unnecessary? Send us the bill, the Points of Dispute, the fee note and the instruction and we will separate the instructions that were genuinely justified from those where a commercial reduction is the better position — on a fixed fee agreed before instruction.
Sources: Athena Capital Fund Sicav-Fis S.C.A. & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 at [7], Peter Jackson, Males and Birss LJJ, 26 July 2022, from the approved judgment published by the National Archives; Practice Direction 44 paragraph 5.1 on the court’s opinion as to fitness for counsel; Practice Direction 47 paragraphs 5.2 and 13.12(i) on fee notes and on instructions, briefs, advices, opinions and drafts; and CPR 44.3 and 44.4.