Following the sad passing of Her Majesty Queen Elizabeth II on 8th September 2022, Queen’s Counsel have since been renamed to King’s Counsel in honour of His Majesty King Charles III. However, in our below case study we refer to them as Queen’s Counsel as they were known at the time at which this case occurred.
Starck Uberoi’s litigation solicitors have again established a legal principle regarding costs which is set to be applied to future cases in Courts all over the UK wherever a King’s Counsel (KC) may be instructed. This is not the first time our litigation team have made a powerful impact on costs law, having created common law in costs litigation in 2014.
Our litigation solicitors represented a client who was appealing to be reimbursed costs of Queen’s Counsel (as they were called prior to the passing of Her Majesty) following a successful claim that he had suffered fraudulent misrepresentation. We won our client’s claim, but their application for Queen’s Counsel’s costs to be awarded to them was rejected by the Senior Courts Costs Office. We conducted the appeal of that unfair decision.
We argued that the costing Master who had ordered that our client should pay the costs of his Queen’s Counsel had failed to take into account the importance of the matter to the parties, which the Court is required to consider by virtue of Part 44.5 of Civil Procedure Rules. Our client had been taken advantage of by a former friend who misrepresented the value of land and our client suffered severe financial hardship as a result. Consequently, the High Court confirmed our opinion that it was justified to instruct Leading Counsel.
Our argument was therefore successful and our client was awarded the Queen’s Counsel costs of over £40,000. This case established an important legal principle that if a client’s matter is so important that the instruction of King’s Counsel is necessary, then the losing party of the matter must pay the reasonable costs of the winners.
Either party can make an application for a costs award in litigation cases, but whether or not costs are to be awarded will be up to the Court’s discretion. They will take into account, amongst other factors:
- The conduct of each party prior to and during legal proceedings;
- Whether it was reasonable for the matter to have been brought to court, pursued or appealed against; and
- The manner in which each party made or defended their claim
Generally, the losing party pays the winner’s reasonable costs, but this is not always the case.
It is rare for a costs award to entirely compensate for all legal fees incurred. However, it is a matter for the Court’s discretion to decide how much (if any) is to be awarded. In 2021, we successfully obtained an Order for the losing party to pay 100% of our client’s costs.
King’s Counsel are highly eminent barristers with at least 10 years of experience who have been recommended for their role by the Lord Chancellor. They are regarded as experts in law and are often called in for more complicated cases where their knowledge and experience is necessary.
A small percentage of barristers in the UK are qualified as King’s Counsel.
This may seem like a silly question, given that King’s Counsel are highly experienced legal experts. However, although King’s Counsel are generally considered to be the best legal experts in the country, that does not necessarily mean they will be best for your case in particular.
For magistrates’ cases, it may be better to instruct a local solicitor who knows your local Court well, has experience in handling local matters and has more experience in dealing with more everyday cases such as motoring offences, for example.
Alternatively, for more complicated matters (especially those in which a poor outcome could result in financial ruin or imprisonment), a King’s Counsel may well be the best option for representation in conjunction with solicitors.
As you may expect, instructing King’s Counsel is more expensive than retaining most other lawyers. While fees vary significantly based on a large mix of factors, they generally tend to be more costly to instruct compared to regular barristers. Often their fees can be as high as tens of thousands of pounds, so you should consider whether the cost of retaining a King’s counsel may outweigh the potential benefits of having instructed a King’s Counsel.
Our litigation solicitors can provide realistic and pragmatic advice on instructing a King’s Counsel.
Head of our litigation department Jonathan Starck can represent you in any court within England and Wales, and has a reputation for consistently securing favourable outcomes in a wide range of different legal disciplines. Regardless of your matter, we provide pragmatic and honest advice from the outset, and will work tirelessly in your best interests to secure the best outcome possible for you.
For more information, please see our litigation pages. To book an appointment with one of our litigation solicitors, please call 020 8840 6640 or email solicitor@starckuberoi.co.uk. Our offices are located in Ealing, Brentford, London Belgravia and Canterbury, all within easy reach via public transport. Our partner, Raminder Uberoi, can also provide a Notary Public Service at any of our offices.
