Are Courts Bound By Summary Assessment Principles When Ordering Pro Bono Costs Under Section 194?

The High Court reduced a pro bono costs claim from £393,329 to £117,000, applying strict guideline hourly rates and significantly cutting hours for attendances and document review under section 194’s discretionary principles.

Pro bono costs assessment section 194 guideline hourly rates reduction from £393,329 to £117,000

EJW BUILDERS LIMITED & WYNNE V MARSHALL & ORS [2025] EWHC 2898 (Ch)

In EJW Builders Ltd & Anor v Marshall & Ors, the High Court assessed a pro bono costs order under section 194 of the Legal Services Act 2007, reducing a claimed £393,329 to £117,000. The defendants had been represented pro bono by Morgan Lewis & Bockius UK LLP (allocated by Law Works) and counsel (allocated by Advocate) in successfully defending a partnership claim. The claimants challenged the costs schedule, arguing London guideline hourly rates should not apply and that claimed rates exceeded guidelines without justification, citing Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466. The court held that where pro bono representation is allocated by legal charities rather than chosen, a Truscott v Truscott [1998] 1 WLR 132 reasonableness test is artificial. However, applying the discretionary principles in Manolete Partners plc v White (No 2) [2025] 1 WLR 1094 and “erring on the side of caution,” the court reduced all hourly rates to London Band 2 guideline levels, found attendances and document review time excessive (particularly criticising partners doing all document work with no delegation to junior associates), but allowed counsel’s fees in full. The court exercised its section 194 discretion to assess £117,000 as appropriate for payment to the Access to Justice Foundation.
Link to full judgment

Accordingly, if I had been summarily assessing the costs payable by the claimants to the defendants, I would have assessed them at £117,000. Instead, however, I am assessing the payment to be made by the claimants to the prescribed charity in respect of the free representation of the defendants by Mr Brown and Morgan Lewis & Bockius... Nevertheless, bearing in mind the double legislative purpose of section 194, as set out in the judgment in Manolete, I consider that £117,000 does indeed represent the appropriate amount of the payment to be made by the claimants to the Access to Justice Foundation, and I will so order.

Citations

EJW Builders Ltd v Marshall [2025] EWHC 2765 (Ch) The court dismissed the claimants’ contention of a partnership or joint venture, finding instead that the claimants’ entitlement arose solely from a JCT contract under which they were the building contractor. Manolete Partners plc v White (No 2) [2025] 1 WLR 1094, CA Confirmed that the power to make a pro bono costs order under section 194 is discretionary and not bound to mirror conventional costs orders; the court must err on the side of caution and consider the legislative aims of fairness and supporting legal charity funding. Mahmoud v Glanville [2025] EWHC 2395 (Fam) Cited in support of a cautious, discretionary approach to the assessment of pro bono costs payments, consistent with the principles set out in Manolete Partners plc v White (No 2). Truscott v Truscott [1998] 1 WLR 132, CA Held that when assessing whether it is reasonable to instruct solicitors outside the local area, various factors must be considered beyond mere geographical location, including the importance and complexity of the matter and prior dissatisfaction with local representation. Re Nortel Companies [2014] AC 209 Referenced for the proposition that a costs liability incurred post-bankruptcy may be considered in the context of determining the claimants’ potential impact on the defendants in the event of adverse costs. Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466 Established that costs claimed above the guideline hourly rates require clear and compelling justification if they are to be awarded against the paying party. Athena Capital Services SICAV v Secretariat of State for the Holy See [2022] EWCA Civ 1061 Reiterated the necessity for a clear and compelling justification when claiming solicitors’ fees above the guideline hourly rates in costs assessments. Football Association Premier League v The Lord Chancellor [2021] EWHC 1001 (QB) Supported the use of a broad brush approach rather than line-by-line review when summarily assessing costs in appropriate cases.
X-twitter Youtube Linkedin

Key Points

  • When assessing a payment to be made under a pro bono costs order pursuant to section 194 of the Legal Services Act 2007, the court is not bound to award a sum that exactly corresponds to the costs order it would have made had the representation not been free, and may adopt a broad brush approach, erring on the side of caution. [8, 9, 25]
  • In exercising its discretion to assess a payment under a pro bono costs order, the court must have regard to the dual legislative purposes of section 194 of the Legal Services Act 2007, which are to level the litigation playing field and to provide a source of funding for the provision of free legal services. [9, 17, 25]
  • Where a legal representative’s claimed hourly rate exceeds the applicable guideline rate, a clear and compelling justification must be provided; in the absence of such justification, the rate will be reduced to the guideline rate. [19]
  • The reasonableness of instructing solicitors from a particular geographical location is assessed by reference to the circumstances as they exist at the time of instruction, which may differ from historical authority due to changes in the legal services market, technology, and specialisation. [16]
  • When assessing notional costs under a pro bono costs order, the court may make significant reductions to claimed time for categories of work, such as attendances and document review, where the figures appear extraordinarily high or disproportionate in the context of the case, and where there has been a lack of appropriate delegation to junior fee-earners. [20, 21, 22, 24]

"The next point of challenge is that the rates claimed exceed the guideline rates for London band 2. Two of the fee-earners are grade A, and for London band 2 since 1 January 2025 the guideline hourly rate for such fee-earners is £413. The rates claimed are £1,205 and £860 respectively... Accordingly, the rates claimed for all the four fee-earners are in excess of the guidelines. Of course, they are just that, guidelines, and are not set in stone. But... 'If a rate in excess of the guideline rate for solicitors' fees is to be charged to the paying party, a clear and compelling justification must be provided'. This point was reiterated in Athena Capital Services SICAV v Secretariat of State for the Holy See [2022] EWCA Civ 1061, [6]... In the present case, no justification was advanced for the excessive rates claimed. I can see none. Accordingly, I will reduce the notional profit costs to take account of this."

Key Findings In The Case

  • The court found that the defendants’ notional solicitors’ hourly rates—£1,205 and £860 for Grade A fee earners, £860 for Grade B, and £350 for Grade D—substantially exceeded the applicable London Band 2 guideline rates (£413 for Grade A, £319 for Grade B, and £153 for Grade D), and no clear or compelling justification was provided for the excess; the judge accordingly reduced the assessed rates to the guideline levels [19].
  • The judge held that although the defendants were represented by a high-cost London firm, Morgan Lewis & Bockius UK LLP, the decision to apply London Band 2 rates to their costs was justified on the facts, as the defendants had no choice in their instructed pro bono legal representatives, having been allocated the firm by LawWorks and Advocate [17].
  • The court concluded that the number of hours claimed by the solicitors for attendances on the clients (89.3 hours) and on opponents (31.9 hours) was excessive, given the straightforward nature of the case and the short period of instruction prior to trial, and that there was an unjustified lack of delegation to junior fee-earners; consequently, a substantial reduction in these categories was made [20].
  • In relation to work done on documents, the court found that the 263 hours claimed—particularly 43 hours for reviewing core contractual documents and 80 hours for preparing witness statements—was extraordinarily high for the nature of the claim, and unjustifiable given that all such work was undertaken by partners rather than delegated appropriately, leading to a significant reduction in the assessment [21, 22].
  • The court accepted the total notional sum of £58,500 claimed for counsel’s fees, finding no reason to interfere with the claimed figures given the representation covered advisory work, trial preparation, and attendance at two interlocutory hearings; however, the court noted that reliance on counsel diminished the scope for overlapping solicitor costs [23].

"All these figures seem to me to be extraordinarily high in the context of this relatively straightforward claim. And I am the more concerned, because all of this work on documents was done by the two partners, and none at all by the two associates. I would have expected it to be the other way round, with only a small amount of partner input as supervision of more junior colleagues. For all of these reasons, a further reduction will have to be made in the notional profit costs."

The High Court’s decision in EJW Builders Ltd v Marshall [2025] EWHC 2898 (Ch) illustrates the court’s cautious and discretionary approach to assessing pro bono costs under section 194 of the Legal Services Act 2007 — emphasising proportionality, adherence to guideline rates as a benchmark, and the need for clear justification where claimed figures exceed them.

Background

The claim was commenced by claim form on 27 June 2023 by EJW Builders Limited and Eammon Joseph Wynne against Audrey Elizabeth Marshall, Edward Joseph Marshall, and their joint trustees in bankruptcy. Though the trustees were named as defendants, they played no part in the trial [§1]. The claimants alleged the existence of a partnership or joint venture agreement with the first and second defendants concerning the redevelopment of a former hotel in Trowbridge, Wiltshire, into four townhouses. They sought a one-third share of the profits, which they valued at up to £3.2 million. The properties ultimately sold for a total of £2,540,000, with £438,000 transferred to the defendants, though the defendants contended these funds were used to pay other debts and that no profits existed.

The matter proceeded to trial before HHJ Paul Matthews on 30 September and 1 October 2025. In an earlier ex tempore judgment ([2025] EWHC 2765 (Ch)), the court dismissed the claim, finding no partnership or joint venture agreement. The court determined in that trial judgment that the claimants’ only entitlement was to £825,000 under a JCT contract. Consequently, an order was made for the claimants to pay costs in respect of the first and second defendants’ pro bono representation to the Access to Justice Foundation, pursuant to section 194 of the Legal Services Act 2007. These costs were to be summarily assessed on the standard basis if not agreed. As the parties failed to agree, this subsequent judgment ([2025] EWHC 2898 (Ch)) concerns the costs assessment. The costs judgment was handed down at 10:30 am on 3 November 2025. The court conducted a paper assessment applying a broad brush approach rather than a detailed or summary assessment [§1, §24].

Costs Issues Before the Court

The primary issue for determination was the assessment of the sum payable to the Access to Justice Foundation under the pro bono costs order. This involved applying CPR rule 46.7, which requires the court to assess a sum equivalent to the costs that would have been payable had the representation not been provided free of charge. Under CPR 46.7(3)(b), the court applies Parts 44-47 with modifications to reflect that the costs are notional [§4, §7]. The judge stressed this was not a line-by-line scrutiny but a broad brush assessment [§24]. The assessment necessitated consideration of the reasonableness of the notional costs, including the solicitors’ hourly rates, the time claimed for various categories of work, and counsel’s fees. Specific challenges were raised by the claimants regarding the application of London guideline hourly rates, the exceedance of those guidelines, alleged excessive attendances, and disproportionate time claimed for document work.

The Parties’ Positions

The defendants, through their solicitors, submitted a costs schedule claiming notional profit costs of £334,829 and counsel’s fees of £58,500, totalling £393,329 (no VAT being payable) [§12]. The solicitors’ fees were based on hourly rates of £1,205 and £860 for grade A fee-earners, £860 for a grade B fee-earner, and £350 for a grade D fee-earner. All claimed rates exceeded the applicable London band 2 guideline hourly rates [§19]. The work included 89.3 hours for attendances on the defendants, 31.9 hours for attendances on opponents, and 263 hours for work on documents.

The claimants challenged the schedule on several grounds. They argued that London guideline hourly rates should not apply, as the case had no connection to London and could have been handled by a provincial firm, relying on Truscott v Truscott [1998] 1 WLR 132. They contended that the claimed rates exceeded the applicable guideline rates for London band 2 without justification, citing Samsung Electronics Co Ltd v LG Display Co Ltd [2022] EWCA Civ 466. The claimants also submitted that the attendances on the defendants and opponents were excessive and that the time claimed for document work, including reviewing core documents and preparing witness statements, was disproportionately high given the case’s straightforward nature.

The Court’s Decision

The court, applying a broad brush approach as endorsed in Manolete Partners plc v White (No 2) [2025] 1 WLR 1094, exercised its discretion under section 194, assessing £117,000 as the appropriate payment to the Access to Justice Foundation. In doing so, the court considered the discretionary nature of pro bono costs orders under section 194 of the Legal Services Act 2007 and the dual legislative purposes: levelling the litigation playing field by exposing both parties to costs risks, and providing funding to support organisations offering free legal help to those in need (citing Manolete at §20) [§9, §17, §20]. Applying Manolete, the court emphasised it should “err on the side of caution” when determining the amount payable [§9, §25-26].

On the issue of guideline hourly rates, the court treated a Truscott reasonableness test as artificial in this case because representation was allocated by the legal charities Advocate and Law Works [§10, §17]. The court found it reasonable for the defendants to accept pro bono representation given the potential costs liability evidenced by the claimants’ budget of £182,848.65 [§18]. The court applied London band 2 rates but reduced the solicitors’ notional profit costs to reflect the guideline rates for London band 2, as no justification was provided for the exceedance. The allowed rates were the 2025 London band 2 guideline hourly rates: £413 for grade A, £319 for grade B, and £153 for grade D fee-earners [§19].

The court found the claimed attendances excessive and reduced them to 60 hours for attendances on the defendants, 20 hours for attendances on opponents, and 17 hours for attendance at the hearing [§20, §24]. It also significantly reduced the time for work on documents from 263 hours to 117 hours, criticising the lack of delegation to junior fee-earners, noting that both partners did all the document work with none by the two junior associates [§21-22], and the disproportionate time spent on tasks such as reviewing core documents and preparing witness statements.

Counsel’s fees of £58,500 were allowed in full, as the court accepted that this sum covered advisory work, interlocutory hearings, and trial preparation, and no specific challenge was made to the trial fee [§23].

Ultimately, the court assessed the notional costs at £58,500 for solicitors’ work and £58,500 for counsel’s fees, resulting in a total of £117,000 [§24]. Emphasising the discretionary nature of pro bono costs orders and the need to err on the side of caution, the court concluded this sum was appropriate for the payment to the Access to Justice Foundation [§25-26].

YouTube player

Specialist costs services across the UK

TMC Legal provides expert costs drafting, negotiaton and costs budgeting services together with representation in detailed assessment hearings. Our experienced costs lawyers and law costs draftsmen act nationwide. Contact us today.

EJW BUILDERS LTD V MARSHALL [2025] EWHC 2898 (CH) | HHJ PAUL MATTHEWS | SECTION 194 LEGAL SERVICES ACT 2007 | CPR 46.7 | CPR 44-47 MODIFICATIONS | ACCESS TO JUSTICE FOUNDATION | PRO BONO COSTS ORDER | SUMMARY ASSESSMENT | STANDARD BASIS | MANOLETE PARTNERS PLC V WHITE (NO 2) [2025] 1 WLR 1094 | MAHMOUD V GLANVILLE [2025] EWHC 2395 (FAM) | BROAD BRUSH APPROACH | GUIDE TO THE SUMMARY ASSESSMENT OF COSTS 2021 | LONDON BAND 2 GUIDELINE RATES | TRUSCOTT V TRUSCOTT [1998] 1 WLR 132 | WRAITH V SHEFFIELD FORGEMASTERS LTD | DEPARTURE FROM GUIDELINE RATES | UNREASONABLE ATTENDANCE HOURS | EXCESSIVE DOCUMENT REVIEW CLAIMS | COUNCIL FEES REASONABLENESS | INCIDENTAL RELIANCE ON COUNSEL | LEVEL PLAYING FIELD IN COSTS | COSTS EQUIVALENT PRINCIPLE | INDEMNITY PRINCIPLE INAPPLICABILITY | PRO BONO REPRESENTATION VALUE | DISCRETIONARY COSTS ASSESSMENT | CLAIMANTS’ SUBMISSIONS ON COSTS | NOTIONAL PROFIT COSTS | LITIGATION FUNDING POLICY | BUNDLING OBLIGATIONS | BAND A TO D FEE EARNER CLASSIFICATION | NATIONAL BAND 1 COMPARISON | FAPLC V THE LORD CHANCELLOR [2021] EWHC 1001 (QB) | ATHENA CAPITAL SERVICES SICAV V SECRETARIAT OF STATE FOR THE HOLY SEE [2022] EWCA CIV 1061 | SAMSUNG ELECTRONICS CO LTD V LG DISPLAY CO LTD [2022] EWCA CIV 466 | PARTNER SUPERVISION EXPECTATIONS | JCT CONTRACT LITIGATION | LEGAL SERVICES MARKET MODERNISATION | SOLICITOR DELEGATION PRINCIPLE | DOCUMENT WORK BY SENIOR LAWYERS | REASONABLENESS STANDARD UNDER CPR