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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 proceedings".

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 
Judge Hurst.

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 London rates.

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