Fees and Costs

The terms ‘fees’ and ‘costs’ are potentially confusing. In this chapter the term ‘fee’ refers to the charge lawyers make to clients. Fees include a contribution to the law­yer’s overheads and a profit element.

‘Costs’ generally refers to the sums recoverable from the other side in litigation. This sum is based on the successful party’s lawyer’s fees,^[1798] but it may be less than the lawyer’s bill to his own client. Sometimes, lawyers refer to expenses incurred on a client’s behalf in non-contentious matters as costs. It is only when they deliver a bill that these costs are seen as fees. It is possible that a party can be responsible for another’s costs in a non-contentious matter. This might occur for example when a borrower agrees to pay the costs of a mortgage lender’s solicitors to check title.^[1799]

Who is responsible for payment of fees and costs is a fundamental issue in providing access to justice through the civil courts. Such access is a basic constitutional right. It can be abrogated only by express provision in an Act of Parliament. Therefore, an order by the Lord Chancellor withdrawing exemption from court fees to those on income support was declared ultra vires because there was no specific enabling provi­sion in the relevant Act.^{[1800] [1801]}

In England and Wales legislation attempting to control lawyers’ costs goes back to at least 1605.5 Other countries have also taken measures to constrain charges. In the US, George W Bush made the issue part of his presidential campaign, saying that ‘avarice among many plaintiffs’ lawyers has clogged our civil courts’. Bush advocated a clients’ bill of rights on the issue.^{[1802] [1803] Controlling costs has generally proven difficult, partly because of the complexity of rules and the variety of contexts to which they must apply. Lord Justice Balcombe commented in Symphony Group v Hodgson,1 that ‘there is only one immutable rule in relation to costs, namely that there are no immu­table rules’.}

III.