Leading Counsel’s fees, in an industrial disease claim, disallowed – a warning to all litigators…
Have you instructed Leading Counsel on a case? If so, Deputy Costs Judge Joseph’s decision in Coram v D R Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) is a must read…and a warning!
The Claimant (as Executor of the Estate of his late Mother) brought an action, against the Defendant, alleging that his Mother had died of mesothelioma as a result of secondary exposure to asbestos through washing her Husband’s overalls.
Proceedings were issued on the 17 October 2019 and the case was pleaded at £112,000.00 (which included £90,000.00 in general damages). Following the CMC, the matter was set down for Trial (to take place in a 5-day window commencing on 2 March 2022). On the 28 January 2022, the Claimant’s Solicitors delivered briefs to Leading Counsel (Mr Harry Steinberg KC) and Junior Counsel (Ms Gemma Scott) for them both to advise in conference on 3 February 2022 and to appear at Trial. Shortly thereafter, on 7 February 2022, the matter settled for the sum of £75,000.00 and with the Defendant agreeing to pay the Claimant’s costs to be assessed if not agreed.
Within the Claimant’s Bill of Costs, the Claimant sought to recover costs in respect of both Leading and Junior Counsel’s brief fees. Mr Steinburg’s brief fee was claimed at £50,000.00 (albeit abated to £25,000.00 to reflect the settlement and the diary commitment of the Trial) and Ms Scott’s fee was claimed at £25,000.00 (abated to £12,500.00 for reasons akin to the aforementioned). The parties were able to agree all items in the Bill of Costs, save for the brief fees of both Leading and Junior Counsel. As the amount in dispute was below £75,000.00, the Bill was subject to Provisional Assessment.
Following Points of Dispute and Replies being served, the Bill was provisionally assessed on the 4 October 2022 by Deputy Costs Judge Joseph. At the Provisional Assessment, Deputy Costs Judge Joseph disallowed Leading Counsel’s fees in their entirety and allowed Junior Counsel’s fees in the sum of £10,000.00. Deputy Costs Judge Joseph’s reasoning was based on whether it was reasonable and proportionate to instruct Leading Counsel and not, as was pleaded within the Defendant’s Points of Dispute, whether the case was well within the capabilities of Junior Counsel. And, as this was an assessment on the standard basis, any doubt as to whether costs are reasonable and proportionate, must be resolved in favour of Defendant. Subsequently, the Claimant sought an Oral Review in accordance with CPR Part 47.15(7).
At the Oral Review the Claimant was represented by Mr Benjamin Williams KC and the Defendant by Mr Kevin Latham. Deputy Costs Judge Joseph had two issues that he had to consider:
- Whether a new statement could be adduced at the Oral Review; and
- The instruction of Leading Counsel.
With regards to issue 1, prior to the Oral Review and following the Provisional Assessment, the Claimant filed a Witness Statement signed by Leading Counsel (which essentially detailed Leading Counsel’s expertise in asbestos litigation and that it was common, in all mesothelioma claims, for parties to instruct Leading Counsel irrespective of whether the financial value of the claim was “modest”). The Defendant objected to Leading Counsel’s statement being adduced at this stage of proceedings. After careful consideration, Deputy Costs Judge Joseph concluded that he should not exercise his discretion to disallow Leading Counsel’s statement and if there was any prejudice to the Defendant such was minimal.
In relation to issue 2, Deputy Costs Judge Joseph ultimately found in favour of the Defendant and determined that the Provisional Assessment stood and was not to be disturbed. Deputy Costs Judge Joseph commented at paragraph 43 of the Judgment that:
“The decision as to whether to instruct Counsel, whether a Leader or junior, when to instruct, and whom to instruct is, of course, a decision for the client. He reaches a decision based on the advice, principally of the solicitor whom he has instructed to advise and act for him in the case. The conducting solicitor is required to use his skill, expertise, experience and judgment in giving advice to his client. He is entitled, if he wishes, to take advice from others, such as junior Counsel whom he has already instructed. That conducting solicitor may, as is clearly the case here, be a specialist in the particular discipline concerned.”
But went on to say, at paragraph 46, that:
“There was no witness statement from the conducting solicitor, and he did not attend the oral review. There was no evidence from Ms Scott or, indeed, any information placed before the court, as to precisely why and when she apparently advised that a Leader should be instructed in this case.”
And, at paragraph 48:
“The result is that I have nothing from either the conducting solicitor or from junior Counsel to help me understand the thought process which might have justified the instruction of a Leader. That, of itself, ought not to be fatal to the Claimant’s claim to recover Mr Steinberg’s brief fee but it is a factor which I consider I must take into account.”
It was fundamentally this factor, amongst other factors (including the Claimant’s failure to challenge the decision to assign the case to a category C Judge, despite “the considerable significance and importance which the claimant seeks to place on the case (in terms of it being novel, difficult, having complex medical and statistical evidence, the need for skilful cross examination and so on”), which led to the final determination of Deputy Costs Judge Joseph.
This judgment is a stark warning to Solicitors, who instruct Leading Counsel, that it is paramount that not only must the instruction of Leading Counsel be considered as a reasonable and proportionate exercise in the context of proceedings, but also that due consideration must be given when advising the client in respect of the same and the potential ramifications / risks of such when the fees are being later sought from the paying party.
How can PIC help?
At PIC we are here to help with all your costing needs, whether that be for the receiving party or paying party. Should you require our assistance, please visit our website where you can submit an enquiry or, alternatively, call us on 03458 72 76 78.
Amy Avory, Costs Specialist
13.07.2023