Higgs v Camden & Islington Health Authority

This is an appeal from decisions of costs from Costs Judge Rogers made on the 24^th April 2002. I sat with two assessors, Costs Judge Campbell and Mr Michael Howells, a solicitor. We heard oral submissions during the 3^rd December 2002, when I reserved judgment in this case. I have been greatly assisted not only by my assessors, but also by counsel in their oral and written submissions. Although this is my Judgment, the conclusions I have reached accord with the views of both assessors.

The claimant/respondent’s clinical negligence claim was based on the proposition that the defendant had failed to care for him adequately during the first 35 minutes of his life, with tragic consequences. The outcome was that damages of £3.5 million plus (confidential) education costs indemnity capped at £300,000 were recovered.

The claimant, born on 3^rd December 1993, has severe, acquired, hypoxic brain injury: dyskinetic quadriplegic cerebral palsy causing major and permanent motor disabilities but no intellectual impairment. He has no independent mobility, virtually no useful arm or hand function, dysarthric speech (unintelligible to strangers) and full insight into the nature and extent of his disabilities. He will be dependant for his probably lengthy lifetime for all daily activities such as eating, toileting, washing and dressing. Particulars of Claim were served on 17^th December 1999.

The short relevant chronology is as follows, and I observe that both liability and quantum were in issue throughout as set out below:

A 8-10 day trial was fixed on 14^th June 2000 to commence on 30^th April 2001.

Liability was not admitted until a fax was received at 9.32am on 11^th April 2001 (ten working days before trial).

The conference with both leading and junior counsel which had been arranged for that day to deal with liability was reorganised to deal with quantum.

At 3.28pm on the same day a further fax was received notifying the Claimant that a Part 36 offer of £3.5 million plus education costs indemnity had been made.

A 15-point plan of action was agreed at conference and considerable detailed work was pursued in order to form a view as to whether the Part 36 offer should be accepted.

A further conference was held on 26^th April 2001 to consider the merits of accepting the Part 36 offer,

On Friday 27^th April 2001 the offer was accepted.

The infant approval hearing was on the following Monday (30th April 2001), and the Court approved an Order permitting the claimant to accept the payment into court

An Investment Directions Appointment was held on 27^th July 2001

The claimant’s Bill was served on 12^th October 2001 Notice of Commencement was served on 12^th November 2001. The Points of Dispute were served on 3^rd December 2001.

On 25^th January 2002 the learned Costs Judge ordered, of his own motion, a preliminary hearing which was held on 28^th February 2002. The matter proceeded to Detailed Assessment before Master Rogers on 10^th April 2002 The learned Judge’s judgment was handed down on 24^th April 2002

Permission to appeal was granted by Bell J on 26^th June 2002 in respect of grounds 1, 2, and 4 which are these:

The Costs judge heard oral argument on these issues, spanning some 3 1/4 hours. His decision can be subdivided conveniently, following the headings identified by the Learned Judge.

The team deployed were as follows:

The learned Judge observed that out of that team, the defendants only take issue with the hourly rate in relation to the partner. The defendant’s case as advanced before him by Ms Angela Turpin was that a rate of £300 per hour was a “city rate appropriate only for shipping work and not for this kind of case.” She cited similar cases to the one in issue where firms well experienced in this field were allowed lower hourly rates, such as £250 to £270.

In order to test the reasonableness of the rate charged by the partner, the Costs Judge carried out an old ‘A plus B’ calculation as used before the introduction of the CPR. That is to say, he took an hourly rate representing the overheads of the solicitors and added a percentage uplift, such uplift being assessed according to the complexity and difficulty of the case and the other factors popularly known as ‘The Seven Pillars of Wisdom’. On that basis, the expense rate was £150.00 per hour with an uplift of 100%, a rate and uplift which the claimant claimed to be reasonable and appropriate. The defendant argued that to test the chargeout rate in this way was not legitimate and relied solely on comparative rates.

Although Miss Turpin had contended that that was a completely wrong approach, the learned Judge concluded that the starting point, even under the CPR has to be the solicitors’ expense rate, followed by the various factors that the 7 pillars of wisdom require should be considered in arriving at a final figure. He took into consideration the respective submissions as to whether there should be a lower rate for travel and waiting.

In all the circumstances the learned Judge concluded

The learned Judge went on to deal with the delegation issue. He referred to the complaint that had been made, to the effect that an assistant solicitor often attended consultations and meetings with experts, but thereafter did not carry out particular work. This is really put in the alternative: either that Miss Winyard did not properly delegate work or that the assistant solicitor should not have been present.

The learned Judge observed that against the background of the need to use all sensible efforts to reduce costs by proper delegation, the realities of each individual case had to be borne in mind. In deciding that there was proper delegation in the case, the learned judge observed that Miss Winyard needed to be on top of the case at all times, both because she was taking instructions from two highly experienced barristers, and because with a claim that was pitched originally at £6.1 million (and settling for over half that sum), whether the client was a barrister or dustman, it was perfectly reasonable for the partner in charge to do the lion’s share of the work. The Judge observed in passing that this can sometimes be of advantage because delegation involves instructing the delegee and checking their work after it is completed, and time is not always saved by that exercise.

Leading Counsel’s hourly rate was £350, and it was submitted by the defendant this was too high. The learned Judge reviewed Leading Counsel’s pre-eminence in his field, and observed that there is no “tariff” for hourly rates for counsel. Entirely correctly, he noted that those practicing in the commercial court can command higher rates than those practicing in the common law or criminal courts, and legal aid apart, market forces have an important part to play.

However, as the learned Judge observed, clinical negligence has become increasingly complex and difficult and Leading Counsel instructed is one of the top silks practicing in this area, and as a result can claim a correspondingly high hourly rate. This was a case, in the view of the learned judge, where it was entirely appropriate to brief counsel with the skill and expertise of leading counsel briefed. In the event the Learned Judge decided that £350 was at the top end of the range permissible for hourly rates for silks in this field, but not above the permissible rate.

The court is to have regard to all the circumstances in deciding whether costs were proportionately and reasonably incurred (CPR 44.5(1)).

In particular, the court must also have regard to:

I accept the submission that the proper approach to an appeal from a costs judge is set out in R v Common Professional Examination Board, ex parte Mealing-McLeod (2000) Times, 19 April, per Buckley J:

“Broadly speaking the judge will allow an appeal.. .if satisfied that the decision of the costs judge was wrong: CPR 47.26(2). That is easy to apply to matter of principle or construction. However, where the appeal includes challenges to the details of the assessment, such as hours allowed in respect of a particular item, the task in hand is one of assessment or judgment rather than principle. There is no absolute answer. Notwithstanding that the Judge to whom the appeal is made may sit with Assessors…the appeal is not a re-hearing and given the nature of the Costs Judge’s task and his expertise I would usually, regard it as undesirable for it to be so...

But since the appeal is not a re-hearing, I would regard it as inappropriate for the Judge on appeal to be drawn into an exercise calculated to add a little here or knock off a little there. If the Judge’s attention is drawn to items which with the advice of his Assessors he feels should, in fairness, be altered, doubtless he will act. That is a matter for his good judgment. Permission to appeal should not be granted simply to allow yet another trawl through the Bill, in the absence of some sensible and significant complaint. If an appeal turns out to be no more than such an exercise the sanction of costs may be used”.

The Court should not be seen to be endorsing disproportionate and unreasonable costs, bearing in mind the provisions of the CPR.

The first issue that falls for consideration, therefore, arises out of the submissions by Mr Brown for the defendant/appellant that the method adopted by the learned Costs Judge in determining the hourly rate was wrong and the hourly rate allowed (£300 p.h.) was excessive. Those submissions were developed as follows.

On behalf of the defendant, it was submitted that pursuant to Order 44.4 (1) where a Court is to assess costs on the standard basis the Court will not allow costs which were “unreasonably incurred or unreasonable in amount” (and by Order 44.4(2) it will “resolve any doubt [the Court] may have as to whether costs were reasonably incurred or reasonable and proportionate in amount” in the paying party’s favour). With those submissions there is not difficulty.

Mr Brown referred us to the SCCO Guide to ‘The Summary Assessment of Costs’ in which paragraph 7 confirms that the:

“The general approach to the summary and detailed assessment of costs should be the same. For the summary assessment to be accurate the Judge must be informed about all previous summary assessments carried out in the case. This is particularly important where the Judge is assessing all the costs at the conclusion of the case.”

And by paragraph 8 more generally:

“The court should not be seen to be endorsing disproportionate and unreasonable costs.”

Thereafter, Mr Brown urged that it would be anomalous and undesirable if work carried out for an interlocutory hearing was allowed at different rates than work carried out for the main hearing. Particularly under this heading, he stressed that the court should guard against publicly funded parties being treated differently from privately paying parties, to the disadvantage of the latter. Further, on his argument, those parties who had efficiently reduced their dispute to a one-day hearing may be penalised in respect of their costs.

The court was taken to other parts of the SCCO guide, and in particular to the following observations as to solicitor’s hourly rates at paragraph 37:

“In the past solicitors have sought to recover their charges on what is known as the A plus B basis, namely an hourly expense rate (A) and an uplift for care and conduct (B) The CPR and the Costs Practice Direction discourage the use of this method of calculating charges and solicitors are therefore urged to claim costs at a single charging rate, which will normally be the rate which they have agreed to charge their client.”

It is convenient at this stage to set out the following two paragraphs under the heading Guideline Figures at paragraphs 38 and 39 that I consider have considerable importance in the context of this appeal:

“Guideline figures for solicitors’ charges are published in Appendix 2 to this Guide, which also contains some explanatory notes. The guideline rates are not scale figures they are broad approximations only. In any particular area the Designated Civil Judge may, after consultation between District Judges and the local Law Societies, supply more up to date guidelines for rates in that area. Costs and fees exceeding the guidelines may well be justified in an appropriate case and that is a matter for the exercise of discretion by the court.”

“The guideline figures are not intended to replace figures used by those with accurate local knowledge. They are intended to provide a starting point for those faced with summary assessment who do not have that local knowledge.”

It was observed by the defendant that the use of single hourly rate is also encouraged in the Lord Chancellor’s Paper ‘Controlling Costs’, and in the Solicitors Practice Rules and Solicitors Cost Information and Client Code 1999. Mr Brown submitted that a single hourly rate has considerable advantages to both the receiving and paying parties. As it is readily ascertainable it increases transparency and an understanding of the costs being incurred of the proceedings. It thus promotes settlement.

Mr Brown argued that it will be an exceptional case in which an assessment proceeds on the basis of an ‘A plus B’ method of calculation particularly in a publicly funded case where there is clear evidence as to what would be charged by competent solicitors in the area if they were doing the work privately. He submits the use of ‘A plus B’ factors would otherwise advantage the publicly funded party (and solicitor) over a privately paying party (and solicitor).

The defendant does not accept that the same rate was charged irrespective of whether AW is acting for privately paying or publicly funded client.

Mr Brown relied on the schedule, produced at the last moment before the learned Judge, on which the defendant based submissions as regards the rates charged by comparable firms of similar competence in the area. In addition, he suggested that the Guideline rates in respect of comparable Central London firms should, at the very least, have been the starting point for determining an appropriate hourly rate He observed the case did not involve commercial work ordinarily associated with City Solicitors.

Generally, he submitted that the reasoning of the Learned Costs Judge summarised above, was flawed and in error.

Mr Brown further submitted that the Costs Judge’s approach departed from the fundamental principle that the determination of an hourly rate should “reflect not set” a reasonable hourly rate for solicitors doing the same kind of work in the area in question. Use of surveys, such as the LSLA, will, in general, provide suitable evidence of what such a rate should be in the absence of direct evidence of the rates of other comparable firms in respect of similar work.

Mr Brown challenged the apparent reliance of the claimant on Johnson v Reed Corrugated Cases [1992] 1 AER 169 as authority for the proposition that evidence of the charges of comparable solicitors doing similar work is of ‘limited value’. He submitted the claimant had misunderstood the authority. The claimant’s solicitors in Johnson had relied upon their Expense of Time calculations using their own firm’s overheads and their partners’ notional salaries and had invited the Registrar to base his assessment on these figures (page 180a-b). Evans J held that limited weight was to be attached to such figures (page 18la-b) (ie those of the receiving party’s solicitors) commenting that any such an approach would allow the ‘tail to wag the dog’ (page 180h).

By way of conclusion on this point, Mr Brown submitted that the resulting hourly rate was fixed without reference to the prevailing hourly rate of comparable firms in the area doing comparable work and was influenced by factors which were, in part, subjective and, in part, irrelevant.

Finally, Mr Brown made detailed submissions to the effect that even under the A plus B factor, the rates were excessive, and were out of line with the LSA 1992 survey. In addition, he argued that the mark-up was out of line with comparable cases, and was wrong in principle.

The claimant submitted that the hourly rate as allowed at £300 per hour in respect of Anne Winyard’s work is fair and reasonable. It was argued that this was a complex, very high value clinical negligence claim, involving an unusually intensive level of input from solicitors and counsel, even for this category of injury.

As to the SCCO Guide to the Summary Assessment of Costs Ms Neenan for the respondent/claimant drew my attention to the fact that this sets out that the general approach to the summary and detailed assessment of costs should be the same. Viewed overall, it was submitted that must be right since the factors identified in CPR Part 44.5 are equally applicable to both summary and detailed assessment of costs.

However, the Guide itself is aimed at providing assistance in relation to assessing costs at the end of hearings lasting not more than one day. The Guideline Figures at Appendix 2 to the Guide are broad approximations and it is expressly stated that costs and fees exceeding the guidelines “may well be justified” in an appropriate case at the discretion of the court (para. 38).

It was submitted that the conduct of a complex clinical negligence action run over a number of years places fundamentally different demands upon solicitors than the conduct of a one day fast track trial.

As to the argument set out above as regards the A plus B formula, it was submitted by Ms Neenan that A plus B rates have not been claimed, since the Bill of Costs claims an inclusive rate of £300 per hour.

It was argued that the learned Judge accepted the claimant’s submission that an A plus B type analysis could be used to inform the costs judge’s consideration of the reasonableness of the inclusive rate sought and he had in mind the solicitors’ expense rate and then took the seven pillars of wisdom (now set out in CPR 44.5) into account in reaching the final figure.

Overall, it was submitted that it is for costs judges using their own knowledge and experience to determine what they consider to be the right figure and that in this case the learned Judge was well placed to exercise his own considerable knowledge and experience as a respected practitioner and Costs Judge when considering the appropriate rate. In particular it was said he had the benefit of 7 boxes of papers, the Points of Dispute, the Reply to the Points of Dispute, skeleton arguments, preparation time and two days of full argument.

Ms Neenan sought to uphold the learned Judge’s view that in this instance comparisons with other cases was “of limited value”. In particular she sought to meet the defendant’s contention that there was clear and unchallenged evidence before the learned Judge as to the rates charged by comparable firms of similar competence is incorrect. The position historically appears to be that the defendant’s Costs Draftsperson produced the table of rates appended to her witness statement without prior service on the claimant at the hearing. The claimant’s Costs Draftsperson objected to the table of rates on the basis that no details were provided in relation to the cases to which the rates referred. It was apparently not accepted that the rates related to cases of a comparable level of weight and complexity, in relation to either liability or quantum, nor required the unusually intensive level of input required to prepare the present case.

In dealing with one argument raised during the course of this appellate process, Ms Neenan emphasised that the claimant’s solicitors had not sought to compare the hourly rate appropriate to the present case with the hourly rate appropriate to cases involving commercial work ordinarily associated with City solicitors, and submitted that in any event, the defendant had provided no evidence in support of the contention that commercial City rates for the appropriate period were £300.

Further, the claimant contended that a comparative approach is misguided and attempting to draw a comparison with commercial cases or other hourly rates is unhelpful. Ms Neenan argued that the proper approach is for the costs judge to use his own knowledge and experience to determine what he considers to be the right figure in all the circumstances of the particular case.

It was the learned Judge who raised the question of the relevance of a client’s identity at the hearing. He asked Ms Winyard whether the fact that Leo’s parents are barristers had influenced her. The answer was no.

Ms Neenan accepted that the same level of commitment and attention to client care is demonstrated whether the client is a dustman (the Judge’s example) or a barrister (as is in this case in respect of Leo’s parents).

I was informed that the same rate was charged regardless of whether the partner was acting for a privately paying or publicly funded client, and there is no material before me that leads the court to conclude that assertion is wrong.

In summary therefore, it was submitted that irrespective of the identity of Leo’s parents or the method of funding, the amount asked for and allowed by the learned Judge in respect of the partner’s hourly rate was both fair and reasonable.

My duty is to consider whether the decision of the learned Costs Judge was wrong. Bearing in mind that that is the enquiry I must undertake, my conclusions are as follows:

The argument under this heading can be stated shortly. It is submitted that at the hourly rate awarded the role of Miss Winyard should have been principally supervisory, and the 1992 Practice Direction is relied on in this regard. It is submitted that wrongly Miss Winyard was responsible for the bulk of routine work.

It is submitted that the learned Judge was apparently influenced by the expectations of the claimant’s parents as to “instant” access and communication with the partner, and that the partner would do “the lion’s share of the work”. These matters, it is said, are not elements of the service which are reasonably recovered inter partes. Mr Brown argues that the Learned Cost Judge underestimated the extent to which trained members of staff were able to assist. There is no reason why junior fee earners could not be involved in communications with the client and other routine work.

The answer to this Ground of Appeal can be put shortly. In order to begin a proper determination of these matters, it would be necessary to go through the bill in its entirety in order to give detailed consideration to each of the relevant areas where it is said that delegation should have occurred. This would, in my judgment, involve this court indulging in the exercise of a further “trawl through the bill” which Buckley J in R v Common Professional Examination Board, ex parte Mealing-McCleod (2000) (see paragraph 22 above) stigmatized, in the absence of sensible and significant complaint. There has been no adequate particularisation of this ground and in the result I am unable to assess if this complaint is either sensible or significant. In any event, on the basis of the papers before me, and the submissions that have been made, I am of the view that the learned Judge was entitled to conclude that:

“It seems to me that in a claim which was pitched at £6.1 million and settled for £3.5 million, it was perfectly reasonable for the partner in charge of the case to do the lion’s share of the work. The client, whether barrister or dustman, should expect no less, and, of course, sight should not be lost of the fact that where a partner does do the work, it will tend to be done more effectively and more quickly (and perhaps more cheaply) than if it is delegated. Delegation necessarily involves instructing the delegee, and then checking their work after it has been completed, and time is not always saved by that exercise. Having read the papers in some depth I am quite satisfied that there was a proper delegation in this case.”

Accordingly, I do not consider that the learned Judge was wrong in this regard.

Mr Brown accepts that counsel instructed is a leading Silk in the field of personal injury. However that, he submits, is not determinative of the issue. He relied on the following extract from a judgment of Pennycuick J:

“A proper measure of Counsel’s fees is to estimate that fee a hypothetical counsel, capable of conducting the case effectively, but unable or unwilling to insist on the higher fees sometimes demanded by counsel of pre-eminent reputation would be content to take on the brief: but there is no precise standard of measurement and the judge must, using his or her knowledge and experience, determine the proper figure (Simpson Motor Sales (London) Limited v Hendon Borough Council [1065] 1 WLR 112).

On the basis of those observations, it is submitted on behalf of the appellant that the learned Judge plainly did not apply that test, for if he had he done so it is said that it is likely that he would have concluded that other counsel of sufficient competence and skill could have undertaken this kind of case and that such counsel would have done so at a rate that was less than the “top end of the permissible range”.

It was further submitted that the learned Judge was inappropriately influenced by the possibility of challenges to existing case law in the Court of Appeal or the House of Lords.

The question for me to consider under this ground of appeal is whether the Claimant acted reasonably in engaging the services of the particular silk who was briefed.

I agree with Miss Neenan that in relation to the issues raised on this appeal it is helpful to consider part of the judgment of Kennedy LJ in Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132 at 141-142, as follows:

“If it is contended that a lawyer amounts to an unsuitable or “luxury” choice made on grounds other than grounds which would be taken into account by an ordinary reasonable litigant concerned to obtain skilful competent and efficient representation in the type of litigation concerned, in deciding whether such an objection is sustainable in practice, the focus is primarily upon the reasonable interests of the claimant in the litigation so that, in relation to broad categories of costs, such as those generated by the decision to employ a particular status or type of solicitor or counsel, one looks to see whether, having regard to the extent and importance of the litigation to a reasonably minded claimant, a reasonable choice or decision has been made;

If satisfied that the choice is reasonable, the question of what is a reasonable amount to be allowed imports consideration of the appropriate rate or fee for a solicitor or counsel of the status and type retained;

As the claimants observe, the learned Judge’s own knowledge and experience will inform his assessment of whether it is reasonable to employ a particular status of counsel and to determine what he considers to be a reasonable figure in respect of counsel’s fees.

Having considered this case in detail, and having reflected on the demands of the litigation, the learned Judge considered that “all the experience which (Leading Counsel) could bring to bear on the matter was required”. In my judgment that was a conclusion that the learned Judge was entitled to reach, and accordingly it cannot be characterized as wrong for the claimant to have instructed this particular leader, or for the learned Judge to have so concluded.

Finally as regards the level of a reasonable hourly rate, the learned Judge stated:

“I consider that £350 is at the top of the range permissible for hourly rates for Silks in this field, but not above the permissible rate, which is why I allow it”.

Although this is undoubtedly a high figure, the learned Judge has a wide discretion which should only be interfered with if he was wrong. In my view he was, within his discretion, entitled to conclude as he did.

This judgment should not be read as indicating that an hourly rate of £300 for partners or £350 for leading counsel are in any sense “the norm”. My conclusions are based purely on the particular factors that exceptionally resulted in those figures being appropriate in this heavy and difficult case. This was a complex, very high value clinical negligence claim, involving an unusually intensive level of input from solicitors and counsel, even for this category of injury.

For the reasons set out above, I dismiss this appeal.