Graeme Smith offers advice on tracking down and retaining the ideal agent. Graeme Smith is a partner in the commercial litigation department at Pannone & Partners, Manchester.
Do you recognise the following scenario? You have spent several months working hard on a case and your client is satisfied with the way things are progressing. You are about to deliver a large bill. There is a minor hearing on the case in the Manningham District Registry. You have instructed local agents as the outcome of the hearing is a foregone conclusion because the other side has not filed an affidavit. But the application fails. Suddenly everything collapses around you. How can you explain it to the client? How can you deliver your bill? What went wrong?
Choosing the right agent will not always prevent this scenario from happening. After all, the application may have failed because it had no merit. But it does reduce the risk. There are 10 easy steps to finding and instructing the perfect agent:
1 Deciding that an agent is necessary.
Does the hearing warrant your attendance or that of counsel dealing with the case? Can you justify your own attendance when it comes to taxation? Does it justify instructing local counsel and, if so, do you need agents as well? Consider the importance of the hearing, its complexity and the costs involved. If in any doubt, discuss the matter with your client. Keep your client informed: he may insist that you travel to a hearing even after advice that he will not recover the cost on taxation.
2 Selecting the right agent.
Do not rely on directories or adverts. Try to work on personal recommendation. Some courts will tell you which local firms do a lot of agency work. A few minutes spent making phone calls can help you avoid a lot of problems later on.
3 Keeping the right agent.
Once you have found a good agent, keep a record of it. Create a central directory in the office with details of agents used and comments about them. It will be equally useful for recording firms which should not be used as agents.
4 Confirming that you have chosen the right agent.
Speak to the agent yourself. Ask how much agency work it does. Find out who will be covering the hearing and speak to them as well. Satisfy yourself that they are suitable to represent your firm.
5 Instruct in good time.
If possible, send the papers in good time and ask your agent to ring you when it has considered the papers. This allows you to clarify any questions it has ahead of time and enables it to advise you in plenty of time if you have not complied with the local practice requirements (or, heaven forbid, if you have not complied with the RSC or CCR). This will also give you a second opportunity to satisfy yourself that the agent is suitable.
6 Agree a basis of charging.
Agree either a fixed fee or an hourly rate. If you decide on an hourly rate, decide how long you think the work should take and impose a limit on the cost of preparation time. This can be increased by agreement if the matter becomes more complex. Remember that you are in the position of a client, so call the shots.
7 Give the agent full and clear instructions.
Instructions such as: “Herewith file; please represent us at the hearing” not only increase the risk of failure, but they increase the costs. Put yourself in the position of the agent – what would you need to know? When and where is the hearing? What is the nature of the hearing? Which side do you act for? You should summarise the legal and factual arguments on both sides and cross-refer to the documents.
8 Agree special requirements in advance.
These include such things as the hearing being dealt with by a specific category of fee earner and the agent telephoning you immediately after the hearing. Good agency firms will have good procedures in place, such as screening instructions to identify the type of fee earner required and prompt reporting arrangements – but leave nothing to chance.
9 Keep your agent informed.
If the matter settles, tell the agent immediately. It will avoid preparation costs and may even avoid an attendance altogether.
If you have followed these steps, you can be confident that the hearing will be handled properly. Now, about that bill…