Pontis Finance LLP v Karam, Missick & Traube LLP

1. On 21 st February 2025 I heard a Costs and Case Management (“CCMC”) hearing in this case. I made various directions, to which I will return.

2. The directions I gave as to disclosure meant that both parties needed to file revised costs budgets.

3. In an attempt to achieve costs budgeting for all or most of the then outstanding phases I ordered that: 3.1. Updated Precedent Hs be filed by 4pm on Friday 28 th February 2025. 3.2. Each party file a Precedent R in response to the other’s updated precedent H by 12 pm on Wednesday 5 th March 2025. 3.3. Each party file written submissions not exceeding 5 sides of A4 on the subject of costs budgeting by 4pm on Friday 7 th March 2025 and that I would rule on the parties’ updated costs budgets on the papers.

4. In substance, although two of the Claimant’s filings were a little bit late, the parties complied with those orders.

5. My intention in making those orders was that I would make my ruling pursuant to them within a matter of days of receiving the written submissions so as to avoid what were then future costs becoming incurred costs before I could determine the outstanding budget figures.

6. Unfortunately, the form of the filings did not alert the court to any need to alert me as to their having happened; I had not flagged the need to alert me; I was not alerted to the filings or reminded of the need to make my ruling until very recently, and I had forgotten that I had intended to make the ruling back in March or early April.

7. The Defendant’s solicitors wrote to the court on 3 rd and 4 th July 2025 explaining that they had not heard back from the court since the filing of their written submissions and asking for an update.

8. Unfortunately the letters of 3 rd and 4 th July 2025 were not seen by me until 24 th August 2025 which was when I first reminded of the desirability of my having made or making the ruling promptly.

9. I have twice used the word “unfortunately”. That is not only because of the failures outlined above, for which, insofar as they were the court’s or my failings, I apologise to the parties, but also because, as a consequence of the delay, the costs attributable to the Disclosure phase which in March and April, were costs which had not been incurred, will have become incurred costs. Also, on the material before me, I am not able to assess whether or how much in the way of costs attributable to the Witness Statements phase or the Settlement/ADR phase have now been incurred, with the consequence that, without further updating of the budgets, my power to effect costs budgeting is now more limited than it would have been in March or April.

10. I have considered whether to ask the Claimant to file an updated budget in respect of the witness statement and Settlement / ADR phases before I rule on the outstanding budget issues. However, because, as I explain in more detail below, they are the only phases in respect of which it is likely both that substantial budgeting could still be effected, but which currently I am not in a position to effect, I consider that in the circumstances the further delay and cost involved in taking that course means that it is not a course I should direct without the agreement of the parties or without enabling them to make representations on the subject. If either party wishes there to be costs budgeting in respect of the Witness Statements and/or Settlement /ADR phases, they should apply for a costs management hearing in that regard and for a direction as to the service and filing of an updated Claimant’s budget in respect of those phases.

11. By way of expansion of the point as to the availability of costs budgeting by reference to the individual phases: 11.1. Disclosure: my order of 21 st February 2025 required various steps to be taken by 25 th April, 9 th May and 23 rd May 2025. By a consent order made by Master Pester on 24 th April 2025 those times for compliance were extended to 3 rd June, 6 th June and 9 th June 2025. By a consent order made by Master Pester on 2 nd June 2025, the times for compliance with the disclosure steps ordered was extended to 9 th June 2025. Therefore it is apparent that most if not all of the costs of the disclosure phase will now be incurred costs which cannot be subject to costs budgeting. Accordingly, I will not set a budget for this phase. 11.2. Witness statements: my order of 21 st February 2025 required service and exchange of trial witness statements by 18 th July 2025. By the consent order made by Master Pester on 24 th April 2025 that time limit was extended to 22 nd August 2025. By a consent order made by Deputy Master Dray on 19 th August 2025 this time for compliance was further extended to 4pm on 3 rd October 2025. It is not apparent from the material on the Court file how much work, if any, on witness statements has been done since 7 th March 2025 so as to convert parts of the then budgeted costs for the phase into incurred costs. Therefore I cannot distinguish between incurred and future costs for this phase and cannot set a budget for the Claimant’s costs of this phase, at this time. I will record that the budgeted figure for the Defendant’s Witness statements phase of £23,155.00 as at 5 th March 2025 was agreed. 11.3. Trial Preparation: my order of 21 st February 2025 required the parties by 1 st August 2025 to seek to identify and agree the key documents that should be collated to form a core bundle of documents. By Master Pester’s consent order of 24 th April 2025 this time limit was extended to 12 th September 2025. By Deputy Master Dray’s consent order of 19 th August 2025 this time limit was further extended to 4pm on 24 th October 2025. In terms of costs, the identification and agreement of the key documents for a core bundle should be a very small element of the costs of the Trial Preparation phase. Given that this element now has a deadline of 24 th October 2025 I proceed on the footing that, as at the date when I intend to hand down this judgment, if and insofar as any part of this element is already incurred, that part will be insignificant relative to the overall sums budgeted for trial preparation. The trial has been listed to start on 26 th January 2026. Accordingly, with the possible exception of agreeing Counsel’s brief fee (which element, as distinct from the brief fee itself, should be relatively very small), no significant costs should yet have been incurred in respect of the other main elements of the trial preparation phase, that is to say: preparation of trial bundles; witness summonses; arranging for witnesses to attend trial; any final factual investigations; supplemental disclosure and statements if required; Counsel’s brief fee; any pre-trial conferences and advice from Counsel; and pre-trial liaison with witnesses. On that basis: (i) I will set a budget figure for the Claimant’s Trial Preparation Phase in this judgment and (ii) I will record that the budgeted figure for the Defendant’s Trial Preparation phase of £109,720.00 as at 5 th March 2025 was agreed. 11.4. Trial: No trial costs have yet been incurred, so I will set a budget for the Claimant’s Trial phase in this judgment and I will record that the budgeted figure for the Defendant’s Trial phase of £42,158.20 as at 5 th March 2025 was agreed. 11.5. Settlement / ADR: I do not know whether any and if so how much has been incurred in respect of costs attributable to this phase since March 2025. Therefore, as with the witness statement phase, I cannot distinguish between incurred and future costs for this phase and cannot set a budget for the Claimant’s costs of this phase, at this time. I will record that the budgeted figure for the Defendant’s ADR phase of £37,929.80 as at 5 th March 2025 was agreed. 11.6. Contingency A – Security for Costs: By the time of the CCMC on 21 st February 2025 the potential application for security for costs had been dealt with by agreement and I made an order in respect of security for costs on the basis of that agreement on 21 st February 2025. Accordingly all or virtually all the costs attributable to a potential security for costs application were incurred costs as at 5 th March 2025 and, at this time I will not set budgets for this phase.

12. Turning to the substance. The broad issues are whether the costs for which I am setting a budget per phase fall within the range of reasonable and proportionate costs and, if not, what would be reasonable and proper costs for the relevant phase. There is the possibility of requiring the submission of revised budgets for some or all of the outstanding phases, but, as will become apparent, insofar as the Claimant’s budgeted costs for a phase exceed what is reasonable and proportionate, they do not do so by such large amounts or fractions as to make such a course appropriate, having regard to the overriding objective.

13. The big issues between the parties on the Claimant’s challenged budgets are whether the case is sufficiently valuable and complex to justify the use of the high hourly rates charged by the Claimant’s solicitors and the related question of whether it is proportionate and reasonable to engage both a KC and a junior barrister.

14. CPR 44.3(5) provides that costs incurred are proportionate if they bear a reasonable relationship to- (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party. (e) any wider factors involved in the proceedings, such as reputation or public importance; and (f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.

15. Thus, it is not just the monitory value of the claim which affects proportionality, but also the other factors listed in CPR 44.3(5). In the present case factors (b), (d), (e) and (f) do not appear to be of any relevance and were not relied upon by the parties in their submissions. The main factor in issue is complexity. There is a dispute about the sums in issue or rather as to what as matters of fact or analysis the Claimant might recover if successful. I do not attempt to resolve this dispute. I consider it is sufficient for the purpose of costs budgeting to assess the sums in issue as being in the range £800,000 to approximately £1.2 million.

16. The nature of the claim and the Defence are summarised in the Agreed Case Summary which was provided for the CCMC as follows:

1. The Claimant ( Pontis ) agreed to lend approximately £812,500 to an individual known as Stefano Brugnolo, secured against a property in Mayfair by way of a charge. Pontis was represented by Gunnercooke LLP and the Defendant firm ( KMT ) acted on behalf of the purported Stefano Brugnolo in relation to the loan.

2. Pontis advanced the loan moneys to KMT, and KMT in turn paid those funds to an individual purporting to be Stefano Brugnolo.

3. Pontis’ case is that KMT’s client was an impostor, and not the real Stefano Brugnolo. It considers that the impostor has since disappeared without a trace, and that it has no prospect of recovering the loan moneys from the impostor. Stefano Brugnolo is in the process of removing the charge against the Mayfair property on the basis that it was registered through fraud, and Pontis considers the charge will inevitably be removed once the Land Registry deals with the application.

4. Pontis alleges that KMT failed to perform adequate know-your-client checks and should have identified the fact that its client was an impostor in light of what it says are a number of suspicious features of the transaction. It relies on a certificate of legal advice provided by KMT and asserts that KMT is in breach of undertakings and warranties contained in that certificate. It also claims KMT breached its common law duty of care owed to Pontis, and acted in breach of trust in paying out the loan moneys to the impostor contrary to the purpose of the loan agreement. It seeks the return of the loan moneys, interest, and other fees and costs, totalling approximately £1.2m.

5. As to KMT’s case: 5.1 KMT does not admit that its client was an impostor. 5.2 It puts Pontis to proof on whether the Claimant is in fact the entity which advanced the loan moneys. 5.3 It puts Pontis to proof that the charge is unenforceable and will inevitably be removed. 5.4 It denies the transaction had suspicious features. 5.5 It denies it failed to perform adequate checks, denies it gave undertakings or warranties (alternatively, that it breached any such undertakings or warranties or Pontis relied on any such undertakings or warranties), and denies it is liable in negligence or in breach of trust. 5.6 It denies that certain heads of loss asserted by Pontis are recoverable. The Claimant’s case is that if properly advised it would not have proceeded with the transaction and would have kept the mortgage advance (i.e. a no transaction basis). It is therefore unable to recover damages calculated on the basis that the transaction had completed and the loan repaid (i.e. on a “completed” transaction basis). 5.7 It asserts that Pontis and/or its own solicitors, Gunnercooke, should have taken steps to verify the borrower’s identity. 5.8 In the alternative to paragraph 5.5 above, if the Court finds that KMT did act in breach of trust then KMT seeks relief pursuant to s.61 Trustee Act 1925 .

17. The claim to some £1.2 million is broken down in particulars given under paragraph 55 of the Particulars of Claim as follows: (1) Loan Monies £666,250.00 (2) Interest at the Interest Rate for the period of 12 months from the date of the Facility £146,250.00 (3) Interest at the Default Rate on and from the date of default until 19 August 2023 and continuing to accrue thereafter £380,648.00 (4) Exit fee £8,125.00 (5) Costs incurred by the Joint Receivers paid by Pontis £9,000.00 (6) Legal fees incurred by Gunnercooke in the course of the Transaction invoiced to Pontis and the Joint Receivers (and paid by Pontis) £5,407.20 TOTAL: £1,215,680.20

18. Additionally, the Claimant claims interest pursuant to s.35 A Senior Courts Act 1981 .

19. The Claimant submitted that although the case may not be particularly document heavy, the legal issues and their application to the facts of the case are complex. It was submitted that the most complex issue was whether KMT assumed a duty of care to Pontis. In the Claimant’s written submissions dated 5 th March 2025 it was submitted that this was a point on which the law was frequently developing and that the answer might turn on complex factual questions as to whether KMT’s actions meant it assumed a duty where one might not otherwise exist.

20. In the Claimant’s skeleton argument for the CCMC it was submitted that the legal issues and their application to the facts were complex. It was submitted that these included whether KMT assumed a duty of care to Pontis (who was not its client); whether KMT gave undertakings or warranties and if so what their precise terms were; whether KMT was in breach of trust in releasing the loan moneys to their apparent client; and whether KMT should be excused if it was found to be in breach of trust. It would also require the court to examine the relevant counterfactual when deciding whether Pontis was entitled to the loss it claims. Pontis submitted that for these reasons, the majority of the budgeted for work appropriately focussed on the trial preparation and trial phases.

21. The Defendant submitted that this was a relatively low value professional claim by a lender against a firm of solicitors; that it had some interesting legal and factual quirks, but was neither a complex case, nor a case which could be sensibly categorised as heavy commercial litigation.

22. I agree with the Defendant’s last-mentioned submissions for the following reasons: 22.1. In the overall scale of litigation in the Chancery Division a claim for £1.2 million odd is towards the lower end of the scale. 22.2. At the CCMC on 21 st February 2025 I directed that the claim should be entered in the Trial List, with a listing category of B, with a time estimate of 5 days, to include 1 day of Judge’s pre-reading time. It has been listed on that basis. 22.3. I consider that this case will substantially turn on the facts. Whether there will be subtleties of how the law applies to those facts and what those subtleties will be, will depend mainly on what facts are found. For that reason I think that the Claimant is right to have focussed on trial preparation and trial phases. 22.4. This is not a case of a complicated commercial transaction or one where complicated asset or money tracing evidence or analysis is required.

23. CPR 3.15(8) provides that a costs management order concerns the totals allowed for each phase of the budget, and while the underlying detail in the budget for each phase used by the party to calculate the totals claimed is provided for reference purposes to assist the court in fixing a budget, it is not the role of the court in the costs management hearing to fix or approve the hourly rates claimed in the budget.

24. In its submissions, the Defendant recognised that by reason of CPR 3.15(8) the budgeting court could not fix or approve hourly rates, but submitted, as just mentioned, that this was not a case which could be sensibly categorised as heavy commercial litigation and that it was not a case which justified the hourly rates charged by the Claimant’s solicitors. I have already said why I agree with the first part of this submission, but the second part of the submission potentially only deals with part of the budgeting issues. That is because although in many cases the use of a high hourly rate will itself indicate disproportionality or unreasonableness, it will not always do so. Whether it does may often depend on the number of hours of the high rate individual which are budgeted for. What I am aiming to ascertain is whether the budgeted phase costs are reasonable and proportionate as overall figures for the phase. Thus, it is the overall figure for a phase which I should be looking at. It is possible that the same figure could be reached with a few hours at a high hourly rate, or with more hours at a lower hourly rate. In both alternatives the end figure might be reasonable and proportionate.

25. My approach outlined in the immediately foregoing paragraph is that required by the CPR. As explained in note 3.15.2 of the White Book: “In Yirenkyi [ Yirenkyi v Ministry of Defence [2018] EWHC 3102 (QB) ; [2018] 5 Costs L.R.1177], Jacobs J held that a Master conducting a cost budgeting exercise had erred in principle in approving specific hours and disbursements rather than total figures for each phase of the proceedings and had erred also in expressly reserving matters, such as hourly rates, to be disputed at a detailed assessment. Approving the number of hours which different levels of fee earner may spend had the effect of removing the flexibility each party would later have when deciding how to spend the budget in the light of the way the case develops and would involve the court in micromanaging costs to a disproportionate extent.”

26. I consider that my approach outlined above is consistent with the decision of Constable J in GS Woodland Court GP1 Ltd v GRCM Ltd [2025] EWHC 285 (TCC) which both parties referred me to. In particular para.14 of Constable J’s judgment where he said: “The rates are excessive and, in due course, whilst of course I am not going to say anything specific in terms of what the rates should be or the precise calculation, I will take account of a relatively sizeable downward adjustment in each of the phases where there heavy time costs to reflect the excessive rates.”

27. It is the combination of the rates and the times which potentially led to a disproportionate figure. That conclusion also means that both (i) Constable J’s reference in para.12 of his judgment to Males LJ’s words in Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor (Costs) [2022] EWCA Civ 466 where Males LJ recognised that, when it has been determined that Band 1 is appropriate, that in itself recognises that the litigation is substantial and complex, and it qualifies as very heavy commercial work, and (ii) Males LJ’s words themselves, must be read in context.

28. The Samsung case was a summary assessment case. At para.4 of his judgment Males LJ said that it was important to have in mind that the guideline rates for London 1 already assumed that the litigation in question qualified as “very heavy commercial work”.

29. At para.6 of his judgment in Samsung Males LJ said, as part of his reasoning for the Court of Appeal’s decision: “If a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided. It is not enough to say that the case is a commercial case, or a competition case, or that it has an international element, unless there is something about these factors in the case in question which justifies exceeding the guideline rate.”

30. As will be seen when I turn to the individual phases, the Defendant has mainly criticised the hourly rates, while frequently accepting the number of hours budgeted by the Claimant. I consider that such criticism has to be looked at in the context of the number of hours budgeted for.

31. Before looking at the individual phases, I assess whether the overall figure for incurred and budgeted costs is proportionate and reasonable. The overall figure for the Claimant is £489,891.31. I consider that that figure is outside the range of what is reasonable and proportionate for the present case which, as I already explained, is a claim for approximately £1.2 million at most and is not especially complex either as to the facts or as to matters of law, albeit that once the facts are found it may well be that there will be scope for some more or less subtle arguments as to how the law should apply to them.

32. That conclusion does not mean that I should automatically reduce all the budgeted costs. What it means is that I approach the budgeted costs for each phase on the footing that, having regard to that conclusion, some of budgeted phase costs may well be outside the range of what is reasonable and proportionate for that phase. I do not put it higher than that because when looking at the overall figure I have included incurred costs, and some of the excessive costs may already have been incurred. I also bear in mind the Claimant’s submission that the majority of the budgeted for work appropriately focussed on the trial preparation and trial phases.

33. The Guideline Rates for Solicitors provided in Appendix 2 to the "Summary Assessment of Costs" guide published in the White Book here are broad approximations only.

34. The categories of fee earners in the Guidelines are as follows: [A] Solicitors with over eight years post qualification experience including at least eight years litigation experience and Fellows of CILEX with 8 years’ post-qualification experience. [B] Solicitors and Fellows of CILEX with over four years post qualification experience including at least four years litigation experience. [C] Other solicitors and Fellows of CILEX and fee earners of equivalent experience. [D] Trainee solicitors, trainee legal executives, paralegals and other fee earners. Qualified Costs Lawyers are eligible for payment as grades B or C depending on the complexity of the work done.

35. The Claimant’s solicitors are Mishcon de Reya, whose address is Africa House, 70, Kingsway, London WC2B 6AH. They are Central London based. They will therefore be within the London 1 Band if the work amounts to very heavy commercial or corporate work or the London 2 Band for other work. I consider that the claim can justify the use of a Central London solicitor. For the reasons given above I consider that the work in this case is not very heavy commercial work. Nor is it corporate work. Accordingly the appropriate Band is London Band 2. However, the Bands and the work related to them are only guidelines. In particular some aspects of the work may be closer to Band 1 than others.

36. The relevant Bands and the hourly rates claimed by the Claimant in respect of 4 individuals (RWJ, RS, S and KE) are as follows: Grade London Band 1 Guideline Rates London Band 2 Guideline Rates Claimant’s claimed rates A (RWJ) £566 £413 £870 A(RS) £566 £413 £550 D (CS) £205 £153 £250 D (KE) £205 £153 £400

37. I now turn to the budgets for the individual phases.

38. First, Trial Preparation. The total sum claimed by the Claimant for this phase is £136,550.00. This is broken down in the Claimant’s Precedent H as follows: 38.1. 15 hours of RWJ’s time @£870 = £13,050 38.2. 45 hours of RS’s time @£550 = £24,750 38.3. 35 hours of CS’s time @£35 = £8,750 38.4. Leading Counsels Brief fee = £65,000 38.5. Junior Counsel’s Brief fee = £25,000

39. The Defendant does not take issue with the number of hours claimed for the solicitors, but does take issue with the rates claimed. The Defendant points out that the rates claimed are greatly above the guideline rates for London 2. The Defendant suggests rates for Grade A of £515 and for Grade D of £155. I consider that the number of hours estimated by the Claimant for the various Grades of fee earners for this phase is within the range of what is reasonable. By way of a cross check I note that the Claimant’s estimate for solicitors’ time for this phase is 110 hours. In the Defendant’s case the estimate suggests the use of Grades A and C only, with no Grade D for this phase. Therefore the cross check does not disturb my conclusion as to the reasonableness of the Claimant’s estimated solicitors’ hours for this phase.

40. I have already explained why a purely rates based approach may be inappropriate. However, given my conclusion as to the reasonableness of the Claimant’s estimated solicitors’ hours for this phase, the great disparity between the rates claimed and the London 2 Guidelines, which I consider to be the applicable rates, I would, if I was only budgeting the Claimant’s solicitors fees for this phase apply a substantial discount to the Claimant’s budgeted solicitors’ costs for this phases to take account of this disparity.

41. On the broad brush approach appropriate to costs budgeting, I consider that, if looked at separately from Counsel’s brief fees, the approximate overall discount on the solicitors’ costs appropriate to make those costs reasonable and proportionate would be 35%. This takes into account, on an approximate basis, that it is RWJ’s relatively few hours which are charged at a very much greater rate than the London 2 rate, while the rates charged for the greater number of hours charged for RS and CS although still substantially in excess of the London 2 rates for their grades, are not as greatly in excess as RWJ’s. Thus, looking at the Claimant’s solicitors’ fees for this phase of £30,135 in isolation, a reduction of 35% would be very close to £10,550.

42. However, I am not budgeting only the solicitors’ fees and it does not follow that I should reduce the overall figure for this phase by £10,550 or at all. The issue for me is whether the overall figure for this phase is reasonable and proportionate – see CPR 3.15(8) referred to above. The fact that one element of the phase may be outside the range of what is reasonable and proportionate for that element to the extent of £10,550 does not mean that the overall figure for the phase is necessarily outside the range of what is reasonable and proportionate. For example, if, in this phase, counsel’s fees were within the upper limit of the reasonable and proportionate range by £10,550 or more, then on an arithmetical basis the overall figure for the phase would be reasonable and proportionate.

43. The Claimant seeks budgets for leading and junior counsel for the trial with brief fees of £65,000 and £25,000 respectively. The Defendant submits that to the extent that the legal and factual eccentricities of the case justify the instruction of leading counsel for trial, leading counsel should be able to conduct the trial alone. The Defendant also submits that it is unnecessary to have both leading and junior counsel at trial because the Claimant intends to have a managing associate present for the duration of the trial. The assumption made in Claimant’s Precedent H in respect of the Trial phase is that the trial will be attended by a Grade A solicitor and Grade D trainee throughout. In its written submissions the Claimant says that it has budgeted for the fee earner with principal conduct of the matter and a trainee to attend throughout the trial. This last is a point which goes to both the Trial Preparation and the Trial phases because it goes to the question of whether an allowance should be made for junior counsel. The Claimant points out that its intended junior counsel is of 3 years call and that the aggregate of the brief fees for its leading and junior counsel (£90,000) is comparable to the Defendant’s leading counsel’s proposed brief fee of £85,000. That is of some but not very great relevance in showing what fee a hypothetical counsel, capable of conducting the case effectively, but unable or unwilling to insist on the higher fees sometimes demanded by counsel of pre-eminent reputation, would be content to take on the brief. There is no precise standard of measurement and the judge must, using his or her knowledge and experience, determine whether such a figure is reasonable and proportionate.

44. I consider that the nature and value of the case as explained above makes it reasonable to brief both leading and junior counsel for the trial. However, I consider that it is disproportionate to spend £90,000 on brief fees for counsel. How the budgeted amount is split between leading and junior counsel is a matter for the Claimant and, indeed, whether and how it might otherwise be applied in the phase is a matter for the Claimant.

45. I consider that the nature and value of the case makes it reasonable to have the Grade A solicitor with principal conduct of the matter present throughout the trial in addition to leading and junior counsel.

46. In the same way that I am not budgeting just for the solicitors’ fees in isolation, I am not budgeting just for counsels’ fees in isolation. I am budgeting for the phase as a whole. In line with Jacobs J’s decision in Yirenkyi I need to look at the matter on a broad basis.

47. The overall figure for the Claimant’s costs in its Precedent H, including incurred costs is £489,891.31. I have already concluded that that figure is outside the range of what is reasonable and proportionate and that for that reason I should approach the budgeted costs for each phase on the footing that some of budgeted phase costs may well be outside the range of what is reasonable and proportionate for that phase. Having regard to the Claimant’s submissions that the majority of the budgeted for work was focussed on the trial preparation and trial phases, I would expect to find the bulk of the costs which take the overall figure outside the range of what is reasonable and proportionate in those two phases of the Claimant’s budget.

48. The overall figure sought by the Claimant for the Trial Preparation phase is £136,550.00. I have concluded that part of that figure consists of excessive solicitors’ fees. In line with the approach of Constable J in the GS Woodland case I consider that I should make a downward adjustment to the Claimant’s phase figure to reflect the excessive rates unless I consider that the excess is counterbalanced by a shortfall as between the Counsel’s fees claimed and the maximum that is reasonable and proportionate. I do not. I consider that a further downward adjustment is appropriate because of my conclusion as to Counsel’s brief fees. In the light of those conclusions and the above reasoning, I consider that the overall figure which is reasonable and proportionate for the Claimant’s costs for the phase is £115,000. I fix the budget in respect of the Claimant’s Trial Preparation phase at £115,000 accordingly.

49. Comparisons with the other party’s figures for a phase are generally not very helpful, even less so where the court has not fixed the other party’s budget but, as here, has recorded an agreed figure. That said, for what it is worth, £115,000 is reasonably close to the Defendant’s agreed figure for that phase of £109,720.

50. Trial: the total sum claimed by the Claimant for this phase is £88,700.00. This is broken down in the Claimant’s Precedent H as follows: 50.1. 10 hours of RWJ’s time @ £870 = £8,700 50.2. 40 hours of RS’s time @ £550 = £22,000 50.3. 40 hours of CS’s time @ £250 = £10,000 50.4. 5 hours of DE’s time @ £400 = £2,000 50.5. Leading counsel’s refreshers @ £7,500 per day for 4 days = £30,000 50.6. Junior counsel’s refreshers @ £2,750 per day for 4 days = £11,000

51. There is a point about the number of counsels’ refreshers. The Claimant has allowed for 4; the Defendant has proposed 3. I think the Defendant is correct. The relevant assumption in the Claimant’s Precedent H assumes “4 x refresher fee for Senior and Junior Counsel (assuming a 4 day trial)...”. That assumption is internally inconsistent. For a 4 day trial the brief fee covers all the work done by way of preparation for representation at the trial and attendance on the first day of the trial; refreshers cover the subsequent days (see for example note 47.14.11 in the White Book). The trial is listed for 5 days to include 1 day for judicial pre-reading. The first day in court is the day after the Judge’s pre-reading day. I consider that counsels’ brief fees are in respect of that first day for them in court, not the pre-reading day. There then will follow 3 more days of the trial. It is for each of those 3 days that a refresher is appropriate. That approach is also consistent with the Claimant’s approach to solicitors’ fees for the trial where they seek to charge by reference to attendance for 4 days.

52. Accordingly, by reference to the Claimant’s calculations in their Precedent H, there should be a reduction of £10,250 representing one refresher of £7,500 for leading counsel and one refresher of £2,750 for junior counsel.

53. I consider that an estimate of 10 hour working days for a solicitor during trial is reasonable.

54. For the reasons given above in relation to the Trial Preparation phase, I consider that the solicitors rates charged are excessive in the context of a case of the present case’s nature and value and that a reduction should be made to the budget figure to reflect that.

55. I have already stated that I consider that having the grade A fee earner RS present throughout the trial is reasonable. Subject to a substantial discount in respect of the rate charged that is also proportionate. The rate claimed for RS is £550. If the London Band 2 Guideline rate for RS of £413 was applied, that would make for approximately a 25% discount.

56. Having the more senior solicitor, RWJ attend and consider the progress of the trial from time to time over the 4 day period appears to me to be reasonable so that he can field any major questions that may arise and maintain a feel for how the trial is progressing. However, given the 10 hours a day for RS, the solicitor with principal conduct of the case, I consider that 10 hours at a rate of £870 is disproportionate. Fewer hours at a lower rate would be reasonable and proportionate. The rate claimed for RWJ is £870. If the London Band 2 Guideline rate for RS of £413 was applied, that would make for approximately a 50% discount in respect of rate.

57. Whether it is reasonable and proportionate additionally to have a trainee present throughout the trial at a cost of £2,500 per day is more doubtful. On balance I consider that subject to a substantial discount in respect of the rate charged that would be reasonable and proportionate. In a case of the nature and value of the present it is reasonable and, subject to questions of quantum, proportionate to have a trainee and a solicitor sitting behind counsel so that urgent matters which have to be dealt with while the court is sitting and which cannot be dealt with in court can be dealt with by one or other of the solicitor and trainee without leaving counsel with no solicitor sitting behind them. Outside court hours there are likely to be things such as finding, copying and sending additional documents which are appropriate to be dealt with a by a very junior person. The rate claimed for the trainee, CS, is £250. If the London Band 2 Guideline rate for CS of £153 was applied, that would make for very approximately a 40% discount in respect of rate.

58. The Claimant also claims for 5 hours for this phase for KE, described in the Claimant’s written submissions as “a Grade D fee earner” at £400 per hour. KE’s role is not explained. Looking back at the earlier phases in the Precedent H it is apparent that KE has had a relatively small involvement with the Pre-Action; Issue / Statements of Case; CMC and Disclosure phases. Whatever KE’s role, the rate sought for him of £400 per hour is way greater than the £153 per hour under the London Band 2 Guideline Rates. In my broad approach which follows I discount all or virtually all of the claim in respect of KE for this phase.

59. The refreshers claimed for leading and junior counsel together amount to £10,250 per day. I consider that that aggregate substantially exceeds what is reasonable and proportionate for a case of this nature and value.

60. Drawing the above threads together and looking at the Claimant’s claimed costs for the phase as a whole, I consider that the appropriate figure for the Claimant for this phase is £50,000.