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No.15 of 2005

 Katie Louise Lewis v The Royal Shrewsbury Hospital

 20 May 2005

 Mitting J (Sitting with Assessors)

Proceedings were brought in October 2002 and liability was settled by a Court Order dated 15 March 2004. The Notice of Commencement was served in May 2004.

There were two appeals arising from the detailed assessment by a Deputy Costs Judge which had been adjourned part heard from December 2004 to February 2005. The case concerned a difficult clinical negligence action where a split trial had been ordered. The Claimant was in receipt of legal aid. The costs related to the issue of liability which was settled at 85% for the Claimant, after briefs had been delivered and about three weeks before trial. The initial detailed assessment concerned issues which included the charging rate and counsel's fees. Regrettably the recording machine malfunctioned so no transcript was obtainable for the first hearing. Copies of the solicitor's sketchy notes and the bill as marked by the Deputy Costs Judge were made available on the appeal.

The Claimant appealed in respect of three fees allowed for Leading Counsel and 14 fees of Junior Counsel. Some of the appeals on the fees of Junior Counsel were not pursued.

After taking into account the amount by which the bill had been reduced and only in part the final late offer made by the Defendants, the Deputy Costs Judge ordered the Claimant to pay the Defendant's costs of the detailed assessment. A significant reduction in the charging rate impacted on the overall reduction in the bill. The Claimant appealed that order.

Leading Counsel had Chambers in Liverpool, Manchester and London; Junior Counsel had Chambers in Liverpool and Manchester. Both Leading Counsel and his Junior were pre-eminent in the field of personal injury and clinical negligence proceedings. To accommodate an expert witness the first consultation was held in London and another, by Junior Counsel, was held in Cambridge. The Deputy Costs Judge disallowed Leading Counsel's travel costs and travelling time. The Judge upheld that decision on the basis that Counsel was not entitled to recover costs for travelling to one of the Chambers from which he practised.

Leading Counsel had sought a fee based on an hourly rate of £350. In Higgs v Camden & Islington Health Authority (which was a comparable case) Fulford J had expressed the view that the hourly rate allowed by the Costs Judge at £350 per hour, while undoubtedly a high figure, was within his discretion. His judgment should not be read as indicating that such a level of fees was in any sense the norm. In the present case the Judge concluded that the hourly rate of £300 per hour used by the Deputy Costs Judge, while at the bottom end of the range, was not below the level which exceeded the generous ambit within which a reasonable disagreement was possible.

Leading Counsel had apparently originally sought a brief fee at £15,000. In view of the settlement it had been reduced to £10,000. There was no evidence before the Deputy Costs Judge as to whether or not Leading Counsel had been able to refill the dates set aside for the trial. The Deputy Costs Judge erroneously assumed he would have been able to take on other work. He allowed a brief fee at £3,500. The brief fee for a full trial or an aborted trial covered the commitment for that trial plus preparation and any negotiations before the trial. It was pure speculation by the Deputy Costs Judge that counsel had other work he was able to do. It was irrelevant whether or not counsel could take on other work. The Deputy Costs Judge had erred in principle and the Appeal Court was entitled to substitute its own view. The hearing was to determine liability only for which a fee of £12,500 would be reasonable and within the expected bracket. The action had settled early. While acknowledging that Leading Counsel was fully committed there was evidence of little preparation up to the time of settlement. In these circumstances a fee of one half of the full fee was appropriate. Junior Counsel would normally expect to receive half his Leader's fee. However he had undertaken other work for which he had been paid and also attended the hearing when the settlement was approved by the court. His brief fee should be £4,000.

Junior Counsel had charged for a conference in April 2000 which was cancelled because an expert could not attend. He had spent 3 hours in preparation and had been allowed £450. The Deputy Costs Judge said he would take that into account when determining the fee for the later conference. That took place in July and counsel spent 2 hours in preparation. The Deputy Costs Judge reduced the fee from £750 to £500. The Judge held this was within the range of discretion and refused that appeal.

Counsel claimed 2 hours for redrafting the Particulars of Claim which was disallowed. There did not appear to be any reason in principle for such a disallowance and the Judge reinstated it.

Junior Counsel attended a conference in Cambridge. He claimed 3 hours preparation and 10 hours travel at a reduced hourly rate, plus £219.10 travel costs. His total fee amounted to £2,144.10. The Deputy Costs Judge allowed £1,300 and travel costs, a total of £1,519.10. The Judge took the view that counsel would ordinarily expect to work on a train journey and no allowance should ordinarily be made for travel. However sometimes time spent travelling could not be usefully spent. Some allowance should be made in these circumstances. He substituted his own figure and would allow £500 for travel costs and time for travel. Counsel's fees should therefore be £1,500.

Counsel claimed fees for a raft of documents, namely:

Draft reply

5 hours

Request for further information

3 hours

Draft questions for the Claimants consultant obstetrician and gynaecologist on the Defendant's witness evidence

4 hours

Advisory note

2 hours

Chronology

3 hours

 

The Judge expressed the view that where specific hours had been claimed by counsel he had no doubt the work had been done efficiently. The copy of the bill had been marked by the Deputy Costs Judge "disallow 3 hours". He could see no justification for that deduction and restored the fee in full.

Counsel settled a detailed draft agenda for the meeting between the consultant obstetrician and gynaecologist experts of both parties and the meeting between the paediatric experts for both parties for which he claimed 6 hours (£1,050) and 30 minutes (£87.50) respectively. The Deputy Costs Judge reduced the former to £700 and allowed the latter. The Judge considered that the former fee should be restored at the hourly rate claimed by counsel.

The appeal for the fee of Junior Counsel for a written advice was withdrawn when the Defendant's representative pointed out that the balance of the fee had been transferred to legal aid. The appeal on certain other fees was not pursued.

The order for costs on the detailed assessment

The result of the appeal was that about £7,608 in costs, and £718 interest had been restored to the bill (£8,326). The original bill had been reduced from some £148,470 to some £103,470, a reduction of some 30%. The main factor had been the reduction in the solicitors charging rate. The Defendant had made an offer to settle in June 2004 at £75,000. That offer had been increased at the end of July to £90,000. The Claimant made a counter offer three weeks later which reflected a reduction of some 10% of the bill as claimed. The Defendant made a final offer at £114,000 on 7 December 2004, a week before the detailed assessment. The Deputy Costs Judge awarded the costs of the detailed assessment to the Defendant. He focussed principally on the reduction of some 30% in costs and deliberately did not have these offers (and therefore the conduct of the parties) at the forefront of his decision in relation to costs. The reductions were clearly factors he was entitled to take into account. He gave little weight to the offers by the Defendant to settle having noted the details of the offers. The Judge was satisfied that the Deputy Costs Judge had erred in principle. The Claimant was publicly funded. The Claimant had argued and lost the principal point on the charging rate. The bill of costs had, as a result, been significantly reduced. The Deputy Costs Judge had deprived the Claimant of the costs of the detailed assessment and he had made the Claimant pay the Defendant's costs. In doing so he had exceeded the factors he had identified as relevant. He had paid no great regard to the offers and had erred in principle in relation to the offers under CPR 44.19. The original offer was well below the figure at which the assessment had concluded. He had failed to have regard to a factor which he should have taken into account. He had erred in principle and arrived at an outcome that was wrong. The Appeal Court could substitute its own decision. There had now been a modest increase in counsel's fees and the reduction was now in the region of 25%. That should count against the Claimant so far as the costs of the detailed assessment were concerned. The Claimant had lost on a point of principle which must be taken into account. There would be no order for costs of the detailed assessment. There would be an order for a legal aid assessment of the Claimant's costs.

The Judge ordered the Defendant to pay the costs of the appeal.

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