Truscott v TruscottWraith v Sheffield Forgemasters Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 1997 |
| Court | Court of Appeal (Civil Division) |
Costs – Taxation – Solicitor – Level of fees allowable – Cases heard in Brighton and Sheffield – Successful party in each case instructing London solicitors – Costs awarded on standard basis – Whether solicitors’ costs to be taxed at London charging rates – Factors to be taken into account – RSC Ord 62, r 12(1).
In two separate appeals the issue arose as to whether, pursuant to RSC Ord 62, r 62(1), the liability of the unsuccessful party ordered to pay costs was 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 those sums claimed by the solicitor who was in fact instructed to act on his behalf.
In the first appeal, the parties had divorced and the wife had been given custody of the children. Orders for period payments in respect of them were made and were registered in the magistrates’ court. However, the husband fell into arrears with his payments and, although those orders could only be enforced in the magistrates’ court, the wife’s solicitors obtained a charging order nisi in the Brighton County Court. The magistrates’ court informed the wife’s solicitors that the application for a charging order nisi was misconceived, but the solicitors went ahead and the order was made absolute. Subsequently, the solicitors applied for an order for sale. The husband then instructed London solicitors as he had become dissatisfied with his solicitors in East Grinstead. The order of sale was struck out and the judge made a wasted costs order in his favour. A district judge taxed the husband’s costs allowing his solicitors to charge it at the London rate. The wife applied for a review of the taxation, contending that it was not reasonable for the husband to have used London solicitors and that such costs were not within the meaning of Ord 62, r 12(1), which provided that on a taxation of costs on the standard basis there should be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts the taxing officer might have were to be resolved in favour of the paying party. The judge allowed the wife’s review on the basis that it was not reasonable for the husband to have instructed London solicitors if their rates were higher than those charged by local solicitors. The husband appealed to the Court of Appeal.
In the second appeal, the plaintiff was injured in Sheffield in the course of his employment with the defendant. He consulted his trade union who instructed their London solicitors to represent him in his claim for compensation. Proceedings were commenced in London, but by consent were transferred to
Sheffield. On the third day of the trial, the action was settled and the defendant submitted to judgment for damages and costs. The plaintiff’s solicitors submitted their bill for taxation at a substantially greater rate than the average charged by Sheffield firms. The defendant applied for a review of taxation contending that, under Ord 62, r 12(1), the plaintiff’s solicitors were only entitled to recover what would have been charged by a Sheffield firm. However, both the district judge and judge allowed the costs at the rate claimed. The defendant appealed to the Court of Appeal.
Held—(1) When assessing costs under RSC Ord 62, r 12(1) a taxing master should consider, first, whether the expenses claimed were properly incurred by the successful party and, second, whether it was reasonable to instruct the solicitors who were in fact instructed. Furthermore, in reaching his decision, the taxing master should also consider what amount would be reasonably sufficient to compensate that party for those costs. If it was reasonable for the party to have instructed solicitors from one area then his costs should be taxed by reference to the broad average direct costs for such a firm in that area and the fact that the party could have obtained the same services at a much lower price than that average elsewhere was irrelevant.
(2) In the first appeal, the judge had erred in holding that it was unreasonable for the husband to have instructed London solicitors if their rates were higher than would be found locally in the Brighton area. The appropriate question was whether the husband had acted reasonably in instructing the London solicitors and in answering that question all relevant considerations had to be taken into account. These considerations were the importance of the matter to the husband; any legal or factual difficulties; the location of the husband’s home and place of work and of the court; his possibly well-founded dissatisfaction with his previous solicitors; the fact that he had sought advice and been recommended to consult the particular London solicitors; the location of the London solicitors, their accessibility to the husband, and their readiness to attend the relevant court; and what, if anything, the husband could be expected to know of the London solicitors’ fees as compared to those of other solicitors whom he might reasonably have been expected to have considered. Had the judge taken into account these matters it seemed obvious that he would have reached the conclusion that it would have been reasonable for the husband to have instructed the London solicitors. The appeal would be allowed and the order of the district judge restored.
(3) In the second appeal, it was reasonable for the plaintiff to have consulted his trade union but the union’s knowledge of the sort of legal fees it would have to expend to obtain competent services for him must be imputed to the plaintiff. The only reason the union had instructed London solicitors in respect of a case to be heard in Sheffield was that it was the union’s practice to send all their work to those solicitors. There were solicitors in Sheffield or Leeds well-qualified to do the work. The defendant’s appeal would be allowed and the matter remitted for further consideration by the district judge.
Cases referred to in judgmentsJones v Secretary of State for Wales [1997] 2 All ER 507, [1997] 1 WLR 1008.
Kawarindrasingh v White [1997] 1 All ER 714, [1997] 1 WLR 785, CA.
KPMG Peat Marwick McLintock v HLT Group Ltd [1995] 2 All ER 180.
L v L (legal aid taxation) [1996] 2 FCR 193, CA.
R v Dudley Magistrates’ Court, ex p Power City Stores Ltd (1990) 154 JP 654, DC.
Simpsons Motor Sales (London) Ltd v Hendon Corp (No 2) [1964] 3 All ER 833, [1965] 1 WLR 112.
Smith v Buller (1875) LR 19 Eq 473, [1974–89] All ER Rep 425.
Appeals Truscott v TruscottThe husband, John Michael Truscott, appealed from the decision of Judge Coltart sitting at the Brighton County Court on 13 February 1996, whereby he allowed the appeal of the wife, Beverley Mary Truscott, from the decision of District Judge Merrick on 5 June 1995 who had taxed the husband’s London solicitors’ costs at the London rate, on the basis that it was not reasonable for the husband to have instructed London solicitors if their rates were higher than would have been charged by local solicitors. The facts are set out in the judgment of Kennedy LJ.
Wraith v Sheffield Forgemasters LtdThe defendant, Sheffield Forgemasters Ltd, appealed from the decision of Potter J sitting with two assessors in the Queen's Bench Division of the High Court of Justice on 31 January 1996 ([1996] 2 All ER 527), whereby he upheld the decision of District Judge Thompson in disallowing an objection by the defendant to his taxation of the costs claimed by the London solicitors to the plaintiff, Trevor Wraith, in respect of a personal injury action brought by him against the defendant in the Queen's Bench Division of the High Court at Sheffield. The facts are set out in the...
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