The recent case of JXA v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB) provides interesting reading regarding the continued importance of Wraith v. Sheffield Forgemasters Ltd, Truscott v. Truscott [1998] 1 WLR 132 (CA) and once again highlights the broad discretion available to a Judge under CPR44.4.

The substantive action was a clinical negligence claim relating to the Claimant’s birth during which, as a result of a period of near total asphyxia in utero, he suffered quadriplegic cerebal palsy at Kettering General Hospital. The Claimant’s mother and litigation friend instructed Mr. McNeil of Fieldfisher LLP, following research upon the internet and based upon Mr. McNeil’s highly regarded expertise in clinical negligence matters. In due course agreement was reached as to liability and the matter proceeded to Detailed Assessment in respect of the costs of liability. Quantum was ongoing and had a potential value of up to £20 million.

In first instance the matter came before Master Nagalingam with the main issue being in respect of hourly rates including the issue of whether it was reasonable to instruct a City of London firm. The Claimant had sought rates of £380 for the Grade A partner rising by £10 per annum to £420; £270 for a Grade C solicitor and £150 for the Grade D rising by £10 per annum to £190 per hour. The Master allowed £350 for a Grade A partner; £200 for a Grade C solicitor and £150 for a Grade D trainee/paralegal. The Master had concluded that

“I don’t find that I need to make any ruling as to what location was appropriate. The ruling must be in relation to what rates are appropriate, based on comparable firms doing comparable work”.

When pressed by the Claimant’s Counsel he stated that

“I would consider firms within the Outer London area to be a reasonable point at which the claimant could have looked at firms well outside of their area”.

The Claimant’s solicitors appealed asserting the Master had applied the wrong test in failing to consider the importance of the litigation to the Claimant, failed to take into account or give sufficient weight to the relevant considerations set out in the Bill of Costs, the replies and oral submissions at the assessment hearing; gave undue weight to less relevant factors including the theoretical availability of alternative and unnamed solicitors across outer London, Nottingham, Birmingham and Manchester and failed to properly consider the effect of inflation on the claimed hourly rates between year ending 31.03.2013 and 16.11.17. The Claimant asserted that by implication the Master had found it was unreasonable to instruct the Claimant’s solicitors

The appeal was heard before Master Goss assisted by Costs Judge James who considered the decisions in Wraith v. Sheffield Forgemasters Ltd, Truscott v. Truscott [1998] 1 WLR 132 (CA) which provides long standing guidance relating to assessments whereby solicitors have been instructed outside of a party’s locality:

“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”.

Master Goss was satisfied that the Master had failed to directly address the question of whether it was reasonable to instruct Mr. McNeil as he should have but that question was not determinative of the appeal. The question was whether the Master had erred in disallowing the rates claimed and allowing the rates he did.

Master Goss found that

“The Master had a broad discretion in this regard, applying CPR44.4. I am satisfied on all relevant facts and applying appropriate considerations that the rates determined by the Master fell within the reasonable band of decisions open to him, notwithstanding his failure to answer clearly the first question in the required two stage process”.

As such the appeal was dismissed.

The appeal is of interest as it reiterates the importance of Wraith v. Sheffield Forgemasters Ltd, Truscott v. Truscott [1998] 1 WLR 132 (CA) and once again highlights the broad discretion available to a Judge under CPR44.4.


David Burke