Is it worth the cost?

The client sounded genuinely concerned that he had not known what he would have to spend in winning his litigation.

The solicitor looked at his file and referred to a client care letter and detailed explanation of his firm's costs policy.

He reminded the client of a signed acknowledgement that had arrived a few days later confirming receipt of the solicitors' terms of business documentation.

He confirmed that he had done rather more than his minimum requirement, and that he had updated the client with costs information at intervals of only three months throughout the whole of the retainer.

The client recalled the chronology.

However, that was not his point.

The solicitor had never told him that it would cost so much to acquire so little.

'I would never have started this thing had you told me the return on my costs liability would be so minimal.' The words were said with obvious feeling.

It is a common scenario and, in a busy practice with many other things to consider, thinking about a costs risk/benefit analysis at various stages during the course of a retainer may easily be overlooked.

At the outset of any litigious matter it is impossible accurately to predict the extent of costs likely to occur during the course of litigation.

But at sensible intervals, and at procedural breaks, it is not unreasonable to assess the strengths - and weaknesses - of a case.

Quite apart from the obligations of the 1999 code of practice, the civil procedure rules (CPR) require similar consideration.

Most litigation practitioners are familiar with CPR 44 (3).

The conduct of the parties and the degree of success that each has achieved within litigation can result in the recovery of only a percentage of 'between the parties' costs.

While there is no specific formula to demonstrate compliance with a solicitor's duty in this respect, it is helpful to present, when invited, evidence that a proper analysis has been undertaken and that the relevant issues have been identified.

If the solicitor considers the client's expectations, the objective of costs recovery from the other side, the minimisation of the client's costs exposure, the minimisation of the client's risk in having costs orders made in favour of the other side, then the steps will have satisfied both the requirements contained within the 1999 code and the client's best interests.

It is not really enough to tell the client what a piece of work is going to cost and how much may have been incurred to a particular date.

In litigious matters it is essential to keep an eye on the end result.

Clients cannot be expected to understand the term 'costs risk/benefit analysis', but solicitors should understand it.

This case study is for illustration only and should not be treated as a precedent