Re R (Costs) (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1995 |
| Court | Family Division |
CAZALET, J SITTING WITH DISTRICT JUDGE WHITE AND MR ANTHONY GIRLING AS ASSESSORS
Costs – child abduction – solicitors' costs – applicant legally aided – whether survey of average hourly rates should be taken into account – assessment of appropriate fees on taxation.
The mother, an Englishwoman, married a US sailor in England in 1980. They had three children. In 1992 the family moved to the USA when the father was posted back there. Later the same year the mother left the father and returned to England with the children. The solicitors were instructed by the Lord Chancellor's Department to apply under the Child Abduction and Custody Act 1985 for the return of the children to the USA At a hearing in July 1992, upon undertakings being given by the father, an order was made that the children be returned to the USA The father then changed his mind and in August 1992 the order was discharged by consent.
The solicitors lodged their bill to be taxed in October 1992. The fees claimed were a partner's time at £90 an hour, an assistant solicitor's time at £70 an hour, and a trainee solicitor's time at £50 an hour. A 75 per cent care and conduct uplift was sought. A taxing officer allowed £65 an hour irrespective of the grade of fee earner and a 65 per cent uplift. The solicitors did not accept those rates or the 65 per cent uplift and applied for a review to a district judge. The district judge allowed £80 an hour for the partner, £65 an hour for the assistant solicitor, and £50 an hour for the trainee solicitor. The district judge declined to allow more than 65 per cent for the care and conduct mark up.
The solicitors sought a further review by a Judge of the Division. They relied on a survey which had been carried out by the Central London Law Societies and London Solicitors Litigation Association in 1992. This showed that the average expense rate for a partner in 1992 was £102 an hour, £75.39 an hour for an assistant solicitor, and £48.33 an hour for other staff such as legal executives, paralegals, and trainee solicitors. The solicitors also argued that the care and conduct mark up of 65 per cent was insufficient.
Held – In this case the costs fell to be taxed pursuant to RSC Ord 62, r 12 and each chargeable item in the bill was the subject of a discretionary allowance which should be shown in two parts, the first representing the direct costs of the work properly itemized and the second the appropriate allowance for care and conduct. The process of taxation should always reflect, not set, the reasonableness of costs incurred in litigation and the
taxing officer should have regard to the general levels of costs actually incurred in the relevant area at the relevant time and to any information before him as to such levels. A survey such as that relied on by the solicitors in the present case was therefore a useful piece of information for the taxing officer to consider when exercising his discretion. However, it should be emphasized that the taxing officer was required to carry out a judicial assessment of the proper figure based on his general knowledge and experience. The survey relied on in this case was authoritative. Evidence was received that the solicitors' expense rates were in fact higher than those established in the survey but the rates they had claimed were lower. The hourly rates claimed would therefore be allowed. As to the care and conduct mark up, the range in the circumstances of the present case fell between 60 per cent and 65 per cent but in view of the particular expertise of these solicitors and the speed with which the matter was conducted the uplift of 65 per cent allowed by the taxing officer and district judge would be confirmed.
Statutory provisions referred to:RSC Ord 62, rr 12 and 17 and Appendix 2.
Cases referred to in judgment:Johnson and Others v Reed Corrugated Cases Ltd [1992] 1 All ER 169.
KPMG Peat Marwick McLintock v HLT Group Ltd [1995] 2 All ER 180.
L v L (Legal Aid Taxation)[1994] 2 FCR 185.
Re A Company (No 4081 of 1989) [1995] 2 All ER 155.
Supreme Court Taxing Office Practice Direction (No 2 of 1991) [1993] 1 WLR 12.
W v G (Costs: Taxation)[1994] 2 FCR 200.
Nicholas Bacon for the solicitors.
MR JUSTICE CAZALET.This is a review of the decision of District Judge Maple made on 2 December 1993. He then reviewed the taxation of the plaintiff's bill of costs which had previously been carried out by a taxing officer of the Family Division. Throughout the proceedings the plaintiff's solicitors acted under the terms of a legal aid certificate.
The substantive case concerned an application to the High Court in London under the Child Abduction and Custody Act 1985. The facts can be summarized as follows. The father and the mother were married in 1980 in the United Kingdom, the father being a serving member of the United States Navy. They lived here until early 1992, when the father was posted back to the United States. He was accompanied by the mother and the three children of their union, with the intention of making America their home. The mother complained that the father had been violent to her; in May 1992 she left the United States and returned to England, bringing the children with her. The father was unaware of their whereabouts. The usual request to the Lord Chancellor's department was made and the solicitors (who practise in the Holborn district of central London) were instructed to issue an application under the Child Abduction and Custody Act 1985 for the return of the children to the United States.
The solicitors instructed counsel to make an ex parte application for an injunction
as well as seek and find orders. They also instructed inquiry agents, who located...
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K v K (Wardship: Taxation of Costs)
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