Fixed fees may now be more common place for transactions, but an international law firm has become one of the first to offer them for its disputes work
NZ Lawyer spoke to Andrew Taplin, the partner in the disputes team at Nabarro who alongside chair Jonathan Warne, has been working on the fixed price litigation strategy.
The new regime is set to offer a single price for the entire dispute that will be agreed at the start of the case.
Taplin says if a client wishes to fix fees from the outset for the duration of the case, the team at Nabarro will then go through a detailed process to scope the work.
The firm will work with the client to identify where they would like to invest higher value fee earner time and where they would be comfortable with work being undertaken at a lower cost – for example the bulk review of documents for disclosure.
“This allows the client to influence how time is spent and allows us to insure that work is delivered in the most efficient manner. We have developed our own tools and customised our time recording software to allow us to estimate costs of a case in great detail and then monitor and project manage those costs as the case progresses. This sits alongside our extensive experience of dealing with project managing complex multi-party/jurisdiction cases,” Taplin says.
The firm will be able to confidently predict the number of hours it will spend on a case based on past experience and aided by the tools that it has developed for the price calculations.
And while hours spent are relevant, the whole point is fixing a cost that Nabarro and the client are happy with, Taplin says.
“The central purpose is for us to give the client certainty on our costs: If we underestimate, that is a risk for the firm, not the client.”
The monthly billing of an agreed amount will also help iron out the peaks and troughs of billing that is unpopular with clients and their finance teams, he says.
The firm decided to introduce fixed-fee litigation after clear messages from both the market and in particular, general counsel, for greater certainty on lawyers’ costs for handling disputes.
Nabarro will continue to offer all types of fee arrangements for clients, including hourly billing and conditional/contingent costs agreements.
Taplin expects fixed fee work in the disputes space to be a trend that will continue to grow and be picked up by other firms.
“As pressure on businesses’ legal spend increases – or even remains as it is today – those businesses will continue to look to their advisors to deliver value and certainty across the range of services they supply – including in relation to handling disputes,” he says. “Many firms reactively offer to cap and set costs for elements of their cases, [but] we believe that by proactively offering it at the outset, as Nabarro is doing, is a model others may also look to adopt. We also see this approach as being of particular interest to third party funders where significant cost overrun may be a risk for their investment.”