High Court upholds decision to disallow KC’s fees in “relatively modest” case

Judge identifies solicitor’s failure to explain why leading counsel was instructed as a significant factor

A costs judge was entitled to disallow leading counsel’s fees in what was a relatively straightforward mesothelioma claim, especially in the absence of the solicitor explaining why he instructed a KC, the High Court has ruled.

Mrs Justice Yip stressed, however, that this did not mean it would never be appropriate to instruct leading counsel to appear at first instance in an action of relatively modest value.

The underlying claim in Coram v DR Dunthorn & Son Ltd [2024] EWHC 672 (KB) was for secondary exposure to asbestos arising out of the appellant’s mother’s death from mesothelioma. The claim had been intimated while she was alive but proceedings only began after her death. Her late husband, the appellant’s father, had previously died from mesothelioma and the respondent had paid compensation to his estate.

In February 2022, just under a month before trial, the case settled for £75,000. The total costs claim was £178,207, including a fee for Harry Steinberg KC of £25,000 plus a success fee uplift of 27.5% and junior counsel Gemma Scott of £12,500 plus uplift. Both fees were 50% of the brief fees for trial.

By the time of the provisional assessment, just counsel’s fees were in dispute – Mr Steinberg had only been instructed 10 days before the settlement. Deputy Costs Judge Joseph disallowed his fees altogether and allowed £10,000 plus uplift and VAT for Ms Scott.

Judge Joseph confirmed his finding on oral review, citing various reasons, such as the case having been listed as category C and the absence of evidence from the conducting solicitor or Ms Scott to help him understand the thought process which might have justified instructing leading counsel. This ought to have been a relatively simple exercise for the solicitor, he said.

Another key issue was around the need, if the case went to trial, to challenge a deputy High Court judge’s decision on asbestos exposure in Bannister v Freemans PLC [2020] EWHC 1256 (QB). Judge Joseph said the relevant remarks were obiter dicta and “ought not to be elevated to something more significant or difficult to deal with”.

On appeal, Yip J, sitting with Costs Judge Nagalingam as assessor, acknowledged that the subject-matter of the claim was “of the utmost importance to the appellant and his family”. But this should not be “elided with the importance of the case”.

“In itself the fact that a case involves a death will not justify the instruction of leading counsel. Many, if not most, fatal accident and other wrongful death claims are conducted by junior counsel acting alone.

“At the time leading counsel was instructed, it was known that the value of the claim was relatively modest in the context of a High Court action. Damages were not required for future care or to cover future pecuniary loss.

“As the costs judge found, the respondent should not benefit from the untimely death of the deceased, but that does not detract from the fact that the costs judge had to consider the decision to instruct leading counsel in the context that existed at the time.

“Part of that context was its monetary value and the limited recoverable heads of claim. The costs judge’s approach to the nature, value and importance of this individual claim cannot be faulted.”

The fact that the case was placed in listing category C, unchallenged by the appellant, indicated that it was not particularly complex and Judge Jospeh was right to consider this relevant.

“The reality is that the approach to listing reflected that, although the case involved some complexity, in itself it was the sort of case routinely covered by junior counsel or as Mr Latham puts it the ‘bread and butter’ for experienced juniors such as Ms Scott who practice in asbestos claims.”

The focus of the appeal was on the need to challenge the Bannister decision but Yip J agreed with the costs judge’s assessment of the importance of that ruling.

While she accepted that Bannister had attracted “some significant attention amongst practitioners in this field”, and that claimant representatives may be keen to litigate a similar case, “the mere fact that a case may result in an appeal does not lead automatically to the conclusion that leading counsel should be instructed at trial”.

The issue remained whether it was reasonable and proportionate to instruct leading counsel in all the circumstances.

“In my judgment, the costs judge was entitled to weigh the absence of any explanation from the appellant’s solicitor or junior counsel as to the thought process which justified the significant and costly decision to instruct leading counsel.

“As he made clear, the judge did not treat this as decisive but it left him without clear insight into the reasoning behind the decision to instruct a leader in a case which had been conducted to that point as one requiring significant management by an experienced grade A fee-earner and the instruction junior counsel alone.

“At the point at which leading counsel was instructed, both had already done much work, contributing to the overall costs. The reasonableness and proportionality of also instructing leading counsel had to be viewed in that context.”

The fact that the financial liability of instructing a KC was “very unlikely in practice” to fall on the appellant personally was not the issue – “the point was that the instruction of leading counsel in this case and at the stage it occurred was always likely to be seen as contentious since it would drastically increase the claim for costs”.

She concluded: “That is not to say that it will never be appropriate to instruct leading counsel to appear at first instance in an action of relatively modest value. Plainly, there have been and will continue to be many examples of such cases where it is entirely appropriate for leading counsel to be instructed having regard to the issues which are likely to arise.

“Without in any way suggesting that this is what happened in this case, I make it clear that any attempt by insurers to argue that Bannister should carry weight at the stage of negotiating damages but not when it comes to costs would be deprecated.

“If a claim is contemporaneously identified as one raising an important point of principle, it may very well be reasonable to instruct leading counsel. Of course, consideration would also need to be given to managing the proportionality of costs overall.

“Each case will fall to be determined on its own circumstances and in light of the material placed before the judge carrying out the assessment. In this case, I have simply concluded that the costs judge did not err in the exercise of his discretion.”

Benjamin Williams KC (instructed by Humphrys & Co) for the appellant. Kevin Latham (instructed by Clyde & Co) for the respondent.

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27 Mar 2024

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