It is becoming increasingly apparent that the new SCCO Guideline hourly rates are being considered by the courts to be not just a starting point but, in the majority of cases, the end point in costs assessments.
It was previously the case that the 2010 Guideline rates were intended only as a starting point, however they began to be used as a yardstick in all litigation and it became difficult to depart from those rates unless there was obvious justification for an enhancement.
In the two to three years prior to the new rates coming into force in October 2021, however, there were multiple examples of cases in which the court took the view that the 2010 rates were out of date, as a result of which higher rates were allowed. The cases of Harry Cohen v Marion Fine & Ors, and ABS Company Ltd v Pantaenius UK Ltd & Ors to name but two.
We are now hearing of cases in which the hourly rates, however complex the litigation, are being reduced to the new Guideline rates. In the case of Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466, it was held that, if a party wants to recover hourly rates outside of the Guideline rates, a “clear and compelling justification must be provided.” That case has now been supported in the judgment by the Court of Appeal in Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061, in which it was stated that “a justification for the much higher rates was needed.”
The judgments in each case can be found here:
Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466