Kevin Latham has successfully opposed an appeal brought by the claimant in a fatal mesothelioma claim concerning the reasonableness of instructing leading Counsel at trial. In Coram v D R Dunthorn & Son Ltd [2024] EWHC 672 (KB) Yip J upheld the decision of the Deputy Costs Judge to disallow leading Counsel’s brief fee.
The Facts
The claimant’s mother developed and died from mesothelioma. Her late husband, the claimant’s father, predeceased her. He also died of mesothelioma and in an earlier action, the defendant (the father’s employer) admitted that the father was negligently exposed to asbestos dust at work over a period of around 7 days in the 1970s, and paid compensation to his estate. It was the claimant’s case that his mother had been subjected to secondary exposure to asbestos via contact with her husband and/or his clothing when he returned from work.
Liability was denied. The defendant denied that any negligence on its part had materially increased the risk of the deceased developing mesothelioma – a so-called ‘ultra-low exposure’ defence.
The claim was assigned to the fatal mesothelioma list and directions were given by Master Davison, including placing the case in listing category C. It was listed for trial with a three day estimate but the parties agreed a settlement in the total sum of £75,000 approximately a month before trial, with the claimant’s costs to be assessed on the standard basis if not agreed.
The claim for costs
Following the settlement, the claimant presented a Bill of Costs which included abated brief fees for leading and junior Counsel. The fee charged for leading Counsel was £25,000 plus a success fee uplift of 27.5% and VAT, and for junior Counsel was £12,500 plus uplift and VAT. Both fees had been calculated on the basis that they represented 50% of the brief fees for trial.
In response to the Bill of Costs, inter alia, the defendant served Points of Dispute, contending that the claim for costs was disproportionate and in particular objecting to the use of leading Counsel.
Solicitors’ costs were agreed prior to a provisional assessment conducted by Deputy Costs Judge Joseph who disallowed leading Counsel’s fees and maintained that approach upon an Oral Review hearing held at the claimant’s request.
The Appeal
The claimant subsequently appealed, contending that the importance and value of the case itself, the difficult issues of law and fact, the complexity of the expert evidence and the importance to and impact of the case on other cases meant that the claim clearly justified the instruction of leading Counsel. Predominantly, the claimant’s arguments on complexity of law and evidence concerned the matters arising from the earlier decision in Bannister v Freemans PLC [2020] EWHC 1256 (QB) in which, obiter, having dismissed the claim on its facts, a Deputy High Court Judge had accepted the defendant’s evidence that the ultra-low exposure to which Mr Bannister was exposed would not have materially increased the risk of him developing mesothelioma. It was submitted on behalf of the claimant that the Deputy Costs Judge had misunderstood the importance of the decision in Bannister and its relevance to this claim, and had failed to grasp the fact that success in this case would necessitate a direct assault not just on the reasoning in Bannister, but on the expert evidence and literature that underpinned it (the defendant relying upon the same medical expert in both cases).
Held
Dismissing the claimant’s appeal, Yip J concluded that the Deputy Costs Judge had perfectly properly applied the test set out in Juby v London Fire and Civil Defence Authority (Unreported, Evans J, 24 April 1990), taking into account the various factors set out therein.
Recognising the importance of the claim to the claimant personally, Yip J concluded that the importance of the subject-matter is not to 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.
The case did raise potentially difficult questions concerning the medical evidence and legal issues, but those issues were identified in the defence and Master Davison nor the claimant’s advisers viewed the case as one of particular complexity at the time standard directions given, the time estimate for trial was set, and the case was placed into listing category C. The Deputy Costs Judge was right to view the assignment of the case to listing category C, and the absence of any attempt by the claimant’s representatives to revisit that as being of some relevance, albeit not decisive.
Yip J indicated that she was unimpressed by the argument that the listing category is of no significance to practitioners, reminding those involved in such claims that competent representatives are well aware of the importance of assisting the court in listing decisions. She concluded 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.
She concluded that had the claimant’s solicitor revisited the directions, including the listing category, that would have alerted both the defendant and the court to the need to consider the allocation of appropriate resources to the trial. That would have been consistent with the overriding objective under CPR 1.1 which includes ensuring that the parties are on an equal footing and allotting an appropriate share of the court’s resources.
The Deputy Costs Judge had acknowledged that the obiter dicta in Bannister was likely to feature at the trial of this case. He was not wrong to say that obiter dicta should not be elevated into something more significant or difficult to deal with. The issues had to be decided on the facts and on the evidence to be presented at trial. It was unnecessary for the Deputy Costs Judge to enter into an analysis of any factual distinctions between Bannister and the present case.
The Deputy Costs Judge was entitled to weigh the absence of any explanation from the claimant’s solicitor or junior Counsel as to the thought process which justified the significant and costly decision to instruct leading Counsel, especially given that – per Francis v Francis & Dickerson [1956] P 87 – The Deputy Costs Judge was required to put himself into the position of the solicitor at the time he instructed leading Counsel.
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. 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.
It was accepted that the requirement to resolve any doubt in favour of the receiving party could not lead to the slightest doubt being determinative, but held that the provisions of CPR 44.3(2)(b) go beyond merely setting out where the burden of proof lies. A sensible approach is required reflecting the underlying policy that the intention is that courts should not spend undue amounts of time on resolving issues of costs.
In all the circumstances, the Deputy Costs Judge’s decision to disallow leading Counsel’s fees was one he was entitled to reach and the appeal was dismissed.
Conclusions
Whilst a decision on the facts, there are undoubtedly a few important ‘take aways’ for practitioners: –
Kevin Latham is Head of the Costs and Litigation Funding Team at Kings Chambers, and appeared on behalf of the defendant, instructed by Jay Fisher and Paul Wainwright of Clyde & Co on appeal and below.
Ben Williams KC appeared on behalf of the claimant, instructed by Humphrys & Co on appeal and below.
