WRAITH -v- SHEFFIELD FORGEMASTERS

In 1985 Mr Wraith was employed by Sheffield Forgemasters Ltd at their premises in Sheffield. He fell from the walkway of an overhead crane, and sustained very serious injuries. He consulted his trade union, which instructed their solicitors, Russell, Jones and Walker, a well-known London firm, to act on the claimant’s behalf. Proceedings were commenced in London, but by consent they were transferred to Sheffield. In May 1993, on the third day of the trial, the action was settled. The defendants submitted to judgment in the sum of £350,000, together with reasonable costs. Russell Jones & Walker then submitted their bill, in which they claimed a normal rate for a firm of their size and standing in London. However, the rate was substantially more than the average charged by Sheffield firms. The defendants’ solicitors, who were based in Leeds, objected, contending in substance that the claimant’s solicitors should only be entitled to recover what would have been charged by a Sheffield firm, given that both parties were in that locale, as were the witnesses and experts to be used. It was held on appeal that, although the principle of a union instructing panel solicitors in any locality should not be discouraged, those solicitors should apply appropriate hourly rates to the work carried out, calculated on the locality of the claimant concerned.

TRUSCOTT -v- TRUSCOTT

In this case, centering round a dispute over a charging order taken out to reimburse for non payments of child maintenance, there were a number of complexities as to the issue of the charging order, although an order for sale was made. Mr Truscott sought advice from solicitors, but was dissatisfied with the service, and so (upon advice from a friend) approached a firm of solicitors in London. It was argued by the paying party on assessment that this was unreasonable. Upon appeal, the argument was upheld. A further appeal against that decision was heard, wherein the Court ruled that the issues to be taken into account when deciding such matters were, amongst others, the importance of the case to the client (found to be high in this case, as it threatened his home), the legal and factual complexities of the issues. Given the intricacies of the case, and importance of the issues to the receiving party, and the appeal was allowed, the original rates being restored.

HIGGS -v- CAMDEN & ISLINGTON HEALTH AUTHORITY

This was a clinical negligence claim where the Claimant was negligently treated during the first 35 minutes of his life leading him to suffer severe hypoxic brain injury. This left him with dyskinetic quadriplegic cerebral palsy causing major and permanent motor disabilities, though no intellectual impairment.

Proceedings were served on 17 December 1999 and the matter was listed for an 8 – 10 day trial commencing on 30 April 2001. Liability was not admitted until 10 days before trial and on the same day an offer of £3.5 million plus educational costs was made by the Defendant. This offer was subsequently accepted.

The Claimant’s Bill of Costs as served, Points of Dispute were filed and a Detailed Assessment hearing took place before Master Rogers. The present hearing is an appeal by the Defendant against the decision of Master Rogers on three issues, one of which was the allowance of an hourly rate of £300.00 for the Claimant’s solicitor. Hourly rates ranging between £150.00 and £225.00 were also claimed within the Bill for various fee earners who had worked upon the file but the Defendant only took issue with the hourly rate of £300.00 claimed by the senior partner. The Defendant argued that this was a city rate appropriate for shipping matters and not claims such as this. The Defendant cited similar cases where hourly rates of £250.00 to £270.00 had been allowed.

In order to test the reasonableness of the hourly rate Master Rogers had applied the old “A plus B” calculation used pre CPR. He used a sum of £150.00 per hour to represent the overheads of the firm and he applied a 100% uplift to the same to reflect the complexity of the matter, thus he deemed the hourly rate to be reasonable. The Defendant argued this was the wrong approach to take and appealed the decision, submitting amongst other things that guideline hourly rates should have been considered.

On appeal, Mr Justice Fulford felt guideline rates were of little assistance in complex, sensitive cases such as this, though he noted also that the CPR discouraged the use of the “A plus B” calculation. However, Mr Justice Fulford did not feel that Master Rogers had misdirected himself in considering the “A plus B” calculation in order to assess the reasonableness of the hourly rate in the round. He therefore concluded that the hourly rate of £300.00 was reasonable on the basis of the information before him and the other assessors agreed. Appeal dismissed.

PUKSIS -v- BRUMBY

The Claimant sustained severe head injuries when he was knocked over by a vehicle being driven by the Defendant. As the Claimant was under a disability his mother agreed to act as his litigation friend. She instructed Bruce Lance & Co, a firm of solicitors in High Wycombe, to pursue the claim on her behalf. A CFA was entered into, proceedings were issued and judgment was subsequently entered for the Claimant for 50% of his damages. Damages were thereafter agreed in the sum of £900,000.00. It was also agreed that the Defendant would pay the Claimant’s costs to be assessed in default of agreement.

The Claimant’s solicitor presented a Bill of Costs totalling £250,050.00 exclusive of VAT. The judge directed that several matters be determined as preliminary issues, one of which was whether the Claimant was liable to pay the hourly rates claimed in the Bill of Costs or was liable only to pay rates increased by the Retail Price Index.

The CFA stated “We will review the hourly rate on the review date and on each anniversary of the review date. We will not increase the rate by more than the rise in the Retail Prices Index and will notify you of the increased rate in writing.”

The hourly rates claimed within the Bill of Costs increased on a yearly basis and did exceed the Retail Price Index, albeit not by much. The Claimant’s solicitor admitted that he had overlooked the reference to the Retail Price Index when notifying the Claimant of the increased hourly rates but submitted that there had been no breach of the Indemnity Principle as the rates claimed were those notified to the Claimant.

The judge disagreed and stated that the CFA formed the basis of the retainer between the Claimant and her solicitor and it was the Claimant’s liability under that agreement which was relevant. The judge further commented that he had no doubt the Claimant was not aware that the rate increases exceeded the index, and that her failure to complain could not be taken