Master “asked wrong question” over choice of firm

The High Court has struck down a master’s finding that the solicitors’ fees in an employer’s liability claim were to be assessed as if a central London firm had been instructed, saying he had not considered what type of firm should have been retained.

Kelly v Hays & Anor, reported on Lawtel, concerned a personal injury case where £433,000 was claimed but was settled for £50,000 plus costs. The employee lived just outside London and worked in outer London.

The claimant had instructed a City firm, with rates ranging from between £160 and £450 per hour, while the defendants argued that the hourly rates of a national band one firm, which were between £118 and £217, were appropriate.

The master said it was not objectively reasonable to instruct a City firm as there was no international element; the issue then was which firm it would have been objectively reasonable to have instructed. There was no requirement to approach the cheapest solicitor, he said, finding that it would have been objectively reasonable for her to have instructed a central London firm. He uplifted the rates by 20% to take account of the fact that it was a multi-track case and that there was complexity over certain issues, so that the hourly fee rates ranged between £140 and £380.

On appeal, Mr Justice Jeremy Baker found that the master had not only failed to provide reasons as to why central London hourly rates were preferable, but he had also failed to provide reasons for rejecting the defendants’ submissions that a national band one firm was appropriate.

The court was not satisfied that he had asked the correct question, namely what type of firm should have been retained, as per Wraith v Sheffield Forgemasters. Even if he had, the conclusion was not one which it was reasonable for him to have reached on the material before him.

The judge went on to reach his own determination of the issue. Although some aspects of the claim had been complex, it was a relatively straightforward personal injury claim that did not require more than the expertise of a normal experienced solicitor. In the circumstances, the appropriate category of solicitors was national band one. However, there had been some aspects of complexity, which would justify some enhancement to the hourly rates, he ruled: a limitation point, the extent of damages and consideration of surveillance evidence. Baker J said that although there should be some uplift, it was less likely to apply further down the pecking order of fee grades.

He decided it was reasonable to apply £295 for grade A, £230 for grade B, £175 for grade C and £120 for grade D.

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ACL News
Published date
11 Mar 2015

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