Wigg & Co - choice of lawyer
Call us on 01892 529518. Experience counts.
Defendant entitled to
instruct more experienced lawyer.
Queens Bench Divisional Court Regina (Hale) -v- Southport Justices
Reported in the Times Tuesday January 29th 2002-02
It was reasonable for a Defendant charged with common assault and
battery to instruct a Solicitor of more than 4 years standing and to
incur costs using a flat hourly rate. Costs incurred for Solicitors
attendances prior to the charge also fell within Section 16(6) of the
Prosecution of Offences 1985 as expenses incurred "in the
The test to apply is
whether costs were reasonably and proportionately incurred.
Truscott v. Truscott and Wraith v. Sheffield Forgemasters Limited (1998)
1All ER 82 and Sullivan v. Co-operative Insurance Society Limited (1999)
In the first two separate cases issue arose as to whether RSC Ord.
62(r12) (1) An unsuccessful Party ordered to pay costs should be
restricted to what a reasonably competent Solicitor practising in the
area of the Court
(or in the area where the successful Party lived ) might have been
expected to charge or whether the successful Party was entitled to
recover the sums claimed by the Solicitor who was in fact instructed.
The Plaintiffs instructed London Solicitors in cases proceeding in
Brighton and Sheffield.
It was held that the a Taxing Master ( now Costs Judge) had to consider
whether having regard to all the relevant considerations the successful
Party had acted reasonably in instructing the particular Solicitors. It
would not therefore be appropriate for him simply to compare the rates
charged by the firm in question and the broad average costs charged by
firms in the locality of the Court and the residential area of the
successful Party. In the first case it had been reasonable for the
Claimant to instruct the London firm, having regard to the importance
and complexity of the issues and his dissatisfaction with the Solicitors
he had originally instructed. In the case of Wraith the claim had been
issued with the assistance of a Trade Union which recommended and
instructed their London Solicitors. Proceedings were commenced in London
but were transferred to Sheffield by consent. The Court of Appeal held
that the fact that the Union had adopted the practice of sending all
it's work to London Solicitors was of limited relevance, on assessment
in an individual case particularly since there were firms of Solicitors
in Sheffield and Leeds well qualified to do the work.
Cases referred to in the Judgements were :-
Jones v. Secretary of State for Wales (1997) 2 All ER 508
Kawarindra Singh v. White (1997) 1 All ER 714
KPMG Peat Marwick Mclintock v. HLT Group Limited (1995) 2 All ER 180
L. v. L. (Legal Aid Taxation) (1996) 1 FLR 873, c.a.
R. v. Dudley Magistrates Court ex p. Power City Stores Limited (1990)
154 JP 654, DC.
Simpsons Motor Sales (London) Limited v. Hendon Corp. (No.2) (1964) 3
All ER 833.
Smith v. Buller (1875) LR 19 Eq 473,(1874 -80)
The Sullivan case applied the same test as the Wraith case and it was
held that there were in Manchester and in many other centres outside
London Legal Practitioners who conducted cases of substantially greater
weight and complexity every day of their working lives and there were no
weighty factors in the context of costs justifying the Trade Union in
employing London Solicitors to conduct this case in Manchester.
Patterson v. Cape Darlington (2001) SCCO Review No. 4 of 2001
The Claimant brought proceedings against a number of Defendants claiming
damages for asbestos related disease. The Claimant lived and worked in
Liverpool and was a member of the G.M.B.U., and of the Local Victims of
Asbestos Support Group. The Union and the Group advised him to instruct
a particular firm of London Solicitors. He did so and proceedings were
issued in the Central London County Court and ultimately settled. At the
Detailed Assessment the Defendants argued that the Claimant should have
instructed Liverpool Solicitors. The Costs Judge rejected his contention
and the Defendants appealed.
Held ( 1) On an Appeal against the decision of the Costs Judge he
apparently had to show that the decision under Appeal was either wrong
in Law or unreasonable.
(2) The decision was neither. The Claimant had been advised by both the
Union and the Group to use this firm of London Solicitors and could not
be said to have acted unreasonably.
Carpenter v. Mid Kent Healthcare Trust 2nd August 2001
Mr. Justice Astill from His Honour Judge Marr-Johnson at the Mayor's and
City of London County Court decided that the test to apply was whether
the Costs Judge's finding instructing London Solicitors and the high
level of fees charged was reasonable. If he applied the correct
principles in reaching his decision the Court should not interfere with
that exercise of discretion unless it concluded that on the material
before him of applying correct principles then its decision was
unreasonable and it was not the function of the Court to agree or
disagree with his decision. See also Griffiths v. Solutia U.K. Limited
(1959 ) 2000 (unreported ) Q.B. Group Litigation -reasonableness of
instructing London Solicitors . On Appeal it was held that the costs
Judge had wrongly focused on the question as to whether other solicitors
could competently have handled the claims, rather than the question
whether it was reasonable to instruct the particular firm.
He failed to attach sufficient weight to the extra complexities of group
action and the advantages to the Claimants of instructing the particular
firm in the light of its expertise in group actions and its previous
successful action for two groups from the same village.
Julia Bensusan v. Bernard Freedman 20th September 2001 -Senior Costs
This was an Appeal from District Judge Southcombe of 19th January 2001.
Claimants consulted a London firm of Solicitors specialising in personal
injury cases and the District Judge decided that it wasn't reasonable to
use the London firm ,alternatively ,if the Claimant chose to do so ,it
was not reasonable for the London firm to charge more than the rates
which local Solicitors would charge and that she could have used
Solicitors in Maidstone, Canterbury or the Medway towns where the rates
are lower. Senior Costs Judge Hurst on Appeal considered whether costs
were proportionate and reasonably incurred and considered the two cases
under the old rules Wraith and Sullivan. He started from the proposition
that the Claimant was entitled to the firm of her choice. The fact which
weighed heavily with him was that the Home Counties including Kent were
regarded as within the London orbit in legal terms.. All the High Court
cases from Kent are tried in London and most from Sussex. He did not
consider it reasonable when work was done from London to tax it down on
a Detailed Assessment to local rates with low overheads. The question
continued to be were the costs reasonably and proportionately incurred?
The Costs Judge was satisfied that it was reasonable for the Claimant to
instruct London Solicitors and reasonable for them to charge Central
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