Can a solicitor, acting in person in litigation, charge themselves out at their usual hourly rates?

This issue was recently considered at a hearing at the County Court in Oxford.

The Claimant and the Defendant were both solicitors. The Claimant brought a claim against the Defendant that was ultimately struck out, and the Claimant was ordered to pay the Defendant’s costs.

In his bill of costs, the Defendant sought to recover his commercial hourly rate of £500, being the same rate as he would charge to clients. The Claimant argued that the Defendant should only be able to charge £19 per hour in his bill of costs, as the Defendant was a litigant in person.

The Court needed to determine the construction of Part 46.5 of the Civil Procedure Rules, which defines who can be a ‘litigant in person’. CPR 46.5 states:

6) For the purposes of this rule, a litigant in person, includes:

• a company or other corporation which is acting without a legal representative; and
• any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner):
  • a solicitor
  • a solicitor’s employee

It was accepted between the parties that the Defendant’s law firm was never on the Court record as acting for him, nor had they acted for him prior to the start of the claim.

The Claimant said that the Court needed to look at whether there was representation by the law firm before considering whether he was a partner in that law firm.

The Defendant sought to argue that his position within the law firm (it was not clear if indeed he was a partner) meant that he came within the exception under CPR 46.5.

The judge agreed with the Claimant and said that the first requirement a solicitor has to overcome is that he needs to show he is being represented by a firm of solicitors. If he cannot show this (as in the present case), then he is a litigant in person, regardless of the solicitor’s own employment status within that firm of solicitors.

As such, the Defendant was only entitled to recover costs for the work he had reasonably undertaken at a rate of £19 per hour, instead of the £500 per hour he had claimed.