Winning at all costs?
It goes almost without saying that in an adversarial system such as ours, within reason and within the bounds of the rules, people litigate to win. This is especially true now that civil legal aid is a distant memory in the overwhelming majority of practice areas and therefore many of the solicitors acting for members of the public find themselves doing so on a conditional fee basis.
The risk of losing therefore rather concentrates the mind, particular when a trial approaches.
So, when presented with a claim that might fail at trial owing to an existing High Court authority that you consider may be open to challenge, there is likely to be a temptation to brief Leading Counsel. That may well increase your chances of a successful outcome, but the decision in Coram v DR Dunthorn & Son Ltd [2024] EWHC 672 (KB) (22 March 2024) (bailii.org) demonstrates that you might not necessarily recover the costs of briefing Leading Counsel for your client.
Coram was a desperately sad case arising out of the Appellant’s mother’s death from mesothelioma. The Appellant’s father had previously also died from mesothelioma, as a result of the Respondent’s admitted negligence. The Appellant’s case was that his mother had been subjected to secondary exposure via contact with her husband or his clothing when he returned from work. Unfortunately, the Appellant’s mother died prior to the issue of proceedings, which were brought by her son as Executor of her Estate.
Liability was denied, the claim was allocated to the fatal mesothelioma list and standard directions were given placing the case in listing category C. It was listed for a 3-day trial to take place in March 2022. In January 2022, having previously had some background involvement prior to being formally instructed, Leading Counsel was invited to enter into a CFA, in large part owing to concerns that the decision in Bannister (Estate of) v Freemans Public Ltd Company (Rev 1) [2020] EWHC 1256 (QB) (19 May 2020) (bailii.org) had made this particular case a challenging one. There appears to have been a degree of enthusiasm amongst the Appellant’s representatives to challenge the decision in Bannister. Owing to existing commitments, Leading Counsel needed to be briefed by the first week in February to ensure that he could take the case.
Shortly after briefs were delivered to both Leader and Junior, the parties reached a negotiated settlement and Counsel both charged abated brief fees. By the time the case reached a provisional assessment of the costs, the only items remaining in dispute were Counsel’s fees.
During the provisional assessment, Leading Counsel’s fees were disallowed entirely, and the Junior’s abated brief fee reduced. This decision was upheld at a review of the provisional assessment and again on appeal.
The reasoning behind the decision was based, as so many decisions on detailed assessment are, around the factors set out in CPR 44.4(3) and CPR 44.3(2)(b). Interestingly, while expressing very considerable sympathy with the Appellant and his family, while accepting that the subject matter of the claim was important, the Court drew a distinction between the importance of the subject matter and the importance of the case itself, finding that the fact that the case involved a death did not justify the instruction of Leading Counsel. The value of the case was considered to be reasonably modest, and the questions raised were not considered to be complex, risky, but not factually complex. No issue had been taken with the making of standard directions or the listing of the case in category C. The Court noted that, had the Appellant identified at an earlier stage that the Bannister point was likely to have been litigated again, then the case might not have proceeded in accordance with standard directions and the matter could have been cast in a different light, but such a case was not before the Costs Judge on Detailed Assessment. There was also considered to have been an absence of evidence as to the thought processes behind the instruction of Leading Counsel, albeit Leading Counsel himself did provide a statement. This was not determinative but did not help a receiving party faced with a standard basis assessment, meaning that any doubt will ultimately be resolved in favour of the paying party.
The judgment in Coram ends by noting that there may well be similar cases in the future where the issues in the claim justify the instruction of Leading Counsel at first instance. This note ends with a reference to managing the proportionality of costs overall in circumstances where it appears reasonable to instruct Leading Counsel. Mesothelioma cases are, of course, not subject to costs budgeting unless the Court so orders, but this decision seems to suggest that if a point of principle arises in a budgeted case, then the parties ought to be seeking to revise their budgets fairly sharpish and in cases that are not ordinarily budgeted, then some consideration ought to be given to seeking directions from the Court for a budgeting exercise, or at very least looking for the Court to exercise its case management powers so as to manage the case on the basis that an important point of principle is at stake.
This case drives home the paradigm shift that has taken place over the last 10-15 years. Its no longer enough to have a strategy to simply win your case, the strategy to recover your client’s costs has to form part of that plan.
How can PIC help?
PIC’s Total Timeline + product is perfectly placed to help you plan the future costs of the case, as well as keeping you informed about actual spend against budgeted costs. We also offer more conventional bill and budget drafting services. Should this be something you need help with, please speak to one of our friendly Business Development Team.
Andy Moroz, Legal Costs Service Manager
02.05.2024