Client vulnerability and legal costs: what solicitors need to consider

Vulnerability is not limited to clients who lack mental capacity. It can arise from illness, disability, bereavement, trauma, age, limited literacy, language barriers, financial pressure or the stress of the litigation itself. It can also be temporary. A client recovering from a serious injury may be well able to give instructions one month and struggle to absorb detail the next.

For a costs team, the practical question is how vulnerability changes the work. Longer meetings, more frequent calls, interpreters, home visits, communication through a litigation friend or deputy, and additional time preparing a witness for a hearing all affect the cost of running the case.

The SRA Code of Conduct requires solicitors to give clients information in a way they can understand and the best possible information about how their matter will be priced and its likely overall cost. For a vulnerable client, that may mean shorter written summaries, a follow-up call to check understanding, or involving a trusted family member with the client's consent.

It helps to explain the difference between what the client may owe their own solicitor and what may be recovered from the other side. Many clients assume that winning means they pay nothing. Where there is a shortfall, a success fee or a deduction from damages, the client should understand that before signing, and the explanation should be noted on the file.

Where a client lacks capacity to conduct proceedings, a litigation friend or deputy will usually give instructions. In Court of Protection and deputyship matters, costs may be subject to fixed costs rules or assessment, and the deputy needs clear information about what will be charged against the protected party's funds.

When costs are assessed on the standard basis, CPR 44.3(5) sets out the factors used to judge proportionality. These include any additional work or expense generated by the vulnerability of a party or witness. That gives receiving parties a recognised basis for explaining why a case needed more time than its value alone might suggest.

Practice Direction 1A also requires the court to take steps to support the participation of vulnerable parties and witnesses. Directions such as breaks, remote attendance or special measures may increase preparation time, and those costs should be identifiable in the bill rather than buried in general attendances.

The evidence matters. Attendance notes should record why a meeting took longer, why an interpreter was needed or why a home visit was necessary. A narrative in the bill can then point to the file. Without that record, a paying party is likely to argue the extra time was disproportionate.

In budgeted cases, the assumptions behind a costs budget should reflect known vulnerability. If extra conference time or support at trial is anticipated, say so in the assumptions. If vulnerability emerges later and significantly increases the work, consider whether a variation to the budget is needed promptly rather than waiting until assessment.