JXA (by his Mother and Litigation Friend VLA) v Kettering General Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Costs,Mr Justice Goss |
| Judgment Date | 09 July 2018 |
| Neutral Citation | [2018] EWHC 1747 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: Appeal Ref: QB/2017/0302, Claim No: HQ14C04067 |
| Date | 09 July 2018 |
[2018] EWHC 1747 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM SENIOR COSTS OFFICE
MASTER NAGALINGAM DATED 16TH NOVEMBER 2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Goss
And a Costs Master
Case No: Appeal Ref: QB/2017/0302, Claim No: HQ14C04067
John Foy QC (instructed by Fieldfisher LLP) for the Claimant
Roger Mallalieu (instructed by Acumension) for the Defendant
Hearing dates: 29 th June 2018
Judgment Approved
Background
This is an appeal from decision of Master Nagalingam made on 16 th November 2017 in relation to the claimant's costs in proceedings brought against the defendant for damages for clinical negligence. I have sat with Costs Judge James and have been greatly assisted by her and by counsel representing both parties.
The proceedings related to the claimant's birth on 27 th October 2010 at Kettering General Hospital during which as a result of a period of near total asphyxia in utero he suffered quadriplegic cerebral palsy, although this was not diagnosed immediately. Solicitors were consulted in March 2013. The claimant's mother and litigation friend selected Mr Paul McNeil a senior partner in Fieldfisher LLP, based in the City of London, as a result of a search on the internet and by reason of Mr McNeil's highly regarded expertise in clinical negligence claims. In due course, after a significant number of experts on both sides had been instructed and reported, agreement was reached on the issue of liability, which was settled on the basis of 90% liability attaching to the defendant. The question of damages cannot be resolved for many years, but it is agreed that they will run into many millions of pounds, potentially £20 million.
The issue and grounds of appeal
The matter came before Master Nagalingam for the assessment of costs on the standard basis. CPR44.3(1) applied. Any doubt as to the reasonableness of the incurred costs fell to be exercised in favour of the defendant as the paying party. The issue in the case is whether the hourly rate cost was reasonably incurred and reasonable in its amount, which must be objectively reasonable in the circumstances of the particular case.
The grounds of appeal are that the Master
1. Applied the wrong test and failed to have regard to any or any proper reasonable interest of the claimant given the importance of the litigation to him.
2. Failed to take into account or give sufficient weight to the relevant considerations as set out in the Bill of Costs and the replies and the submissions made orally at the hearing on 16 November 2017.
3. Gave undue weight to less relevant factors including the theoretical availability of alternative and unnamed solicitors across a number of geographic locations, in particular outer London, Nottingham, Birmingham and Manchester.
4. Failed to properly consider the effect of inflation on the claimed hourly rates between year ending 31 March 2013 and 16 November 2017.
The Master determined that the appropriate hourly rates for the claimant's solicitors as the receiving party should be
a. £350 for a Grade A partner.
b. £200 for a Grade C assistant solicitor.
c. £150 for a Grade D trainee/paralegal.
The rates contended for had been
a. £380 to 31 March 2013 then rising at the rate of £10 pa every 31 March up to £420 to 16 November for a Grade A partner.
b. £150 rising at £10 pa to £190 over the same period for a Grade D trainee/paralegal.
c. £270 for a Grade C solicitor from 1 January 2017.
The law
It is well established and common ground that determining whether costs have been “reasonably incurred” is a two-stage process. First, having regard to all relevant considerations whether the successful party has acted reasonably in employing the solicitors who had been instructed and, secondly, whether the costs charged were reasonable compared with the broad average of charges made by similar firms practising in the same area; that while availability of less expensive solicitors elsewhere might be relevant to the determination of the first question, it had no relevance to the second ( Wraith v. Sheffield Forgemasters Ltd, Truscott v. Truscott [1998] 1 WLR 132 (CA)).
The relevant matters, identified at p 141 C-F of the judgment of Kennedy LJ in Wraith, as adapted to this case, are
(1) The importance of the matter to the claimant.
(2) The legal and factual complexities, as he might reasonably be expected to understand them.
(3) The location of his home.
(4) Any natural desire to instruct solicitors further afield.
(5) Why Mr McNeil and Fieldfisher LLP were chosen.
(6) The location of Fieldfisher LLP, including their accessibility him and their readiness to attend at the relevant court.
(7) What, if anything, he might reasonably be expected to know of the fees likely to be charged by Fieldfisher LLP as compared with the fees of other solicitors whom he might reasonably be expected to have considered.
Discussion
The claimant's primary complaint is that the Master did not answer the first question as to whether it was reasonable to instruct Mr McNeil and so his decision as to whether the charging rate was reasonable was flawed. I address that ground first.
In his judgment, given during the assessment hearing, the Master referred to the claim being one of substantial value, clearly at the very highest end of importance to the claimant and it was an exceptionally complicated case. When he turned to the choice and instruction of solicitors he acknowledged that the purpose of the court was to “look objectively as to what is a reasonable choice was and thereafter a reasonable rate to apply” (paragraph 19). He referred to the guideline rates generally as being...
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Vadim Maratovich Shulman v Igor Valeryevich Kolomoisky
...than the Guideline Rate set in 2010. 20 Mr James also relied upon the case of JXA v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB) where Goss J upheld the hourly rates allowed by a costs judge of £350 for a partner (Grade A); £200 for a Grade C Solicitor and £150 for......