A senior costs judge has given the green light to counsel claiming fees of £6.3m for work carried out on a 'titanic' piece of litigation concluded seven years ago.
The defendant in Deutsche Bank Ag v Sebastian Holdings Inc made several objections to counsel’s fees on the basis they were unreasonable and included refreshers paid for non-sitting days. He also objected to claims for work done on skeleton arguments and opening and closing submissions.
Master Gordon-Saker said it was reasonable for the claimant to instruct four counsel – including two QCs – given the size and weight of the case. Counsel were all closely involved before the trial and had worked almost exclusively on the case for nine months.
One of the key arguments was about the £1.5m claimed by leading counsel, David Foxton QC, then of Essex Court Chambers and appointed to the High Court bench in December 2019.
The master said this ‘titanic’ litigation involved huge sums of money and was extremely complex and document-heavy, placing it ‘towards the top end’ of work in the Commercial Court.
‘I have no doubt that all of the counsel instructed will not have been working on much else from the delivery of their briefs until the conclusion of the hearing, a period of about nine months,’ he added. ‘It is not part of the court’s function to determine what the reasonable annual earnings of members of the bar should be.’
Given the size of the case and the burden that Foxton assumed, even where some of that burden was shared with others, the master said that a brief fee of £1.5m was not unreasonable. The master also dismissed objections to the £900,000 claimed by the claimant’s second QC, Sonia Tolaney, suggesting that a ratio of about two-thirds of the fee of the senior leader ‘seems to me about right’.
Following a 44-day trial in the Commercial Court concluding in 2013, the defendant, a company incorporated in the Turks and Caicos Island was ordered to pay the claimant’s costs on the indemnity basis. The parties had engaged in litigation over their former trading relationship, for which the bank recovered judgment for US$243m and successfully defended a counterclaim.
Addressing the issue of costs, the master said this had been a huge and hard-fought piece of litigation, with substantial interlocutory disputes and 200,000 documents disclosed. The parties served 54 statements of witnesses of fact and 40 experts’ reports, with 10 joint experts’ reports, and gave 4,400 pages of submissions. The final judgment ran to 428 pages and the total costs claimed by the claimant against the defendants are in excess of £53m, subject to future assessment.