Cost News

Avi Dolties

Coram v DR Dunthorn & Son Ltd [2024] EWHC 672 (KB)

The matter related to an appeal against a decision of the Deputy Costs Judge Joseph on 30 March 2023 to disallow Leading Counsel’s fees. The substantive claim arose out of the Claimant’s mother’s death from mesothelioma. It was the Defendant’s case that his mother had been subjected to secondary exposure to asbestos via contact with her husband and/or his clothing when he returned from work. A claim on her behalf was initiated before she died however proceedings were not commenced until after her death. The matter was eventually compromised in the total sum of £75,000.00 with the Claimant’s costs to be assessed on the standard basis if not agreed.

Following the settlement, the Claimant presented a Bill of Costs which included abated brief fees for Leading and Junior Counsel. The fee charged for Leading Counsel, Mr Harry Steinberg KC was £25,000 plus a success fee uplift of 27.5% and VAT and for Junior Counsel, Ms Gemma Scott, was £12,500 plus uplift and VAT.

The costs judge conducted a provisional assessment on 4 October 2022, by which time the only items remaining in dispute were counsel’s fees. The costs judge disallowed Leading Counsel’s fees entirely and allowed a fee of £10,000 plus uplift and VAT for Junior Counsel. The Claimant exercised his right pursuant to CPR 47.15(7) to seek an oral review. This led to the decision, the subject of the appeal, which confirmed the provisional assessment. The Claimant submitted that initially the claim had a value in excess of £200,000, but had been reduced in value by the deceased’s death. It was further submitted that the claim was important and complex, and raised an issue of significant public importance which had implications for other cases. This was relied on for justifying the instruction of Leading and Junior Counsel. Having considered all the circumstances the cost judge was not persuaded that it was reasonable and proportionate to instruct Leading Counsel.

On appeal, taking into account the importance of the litigation to the Claimant personally, the complexity of the medical evidence and legal issues, Yip J upheld the decision of the Deputy Costs Judge to disallow leading Counsel’s brief fee. Yip J commented ‘Standing back and looking at the judgment below as a whole, it is clear that the costs judge correctly identified the legal principles he had to apply. He carefully analysed the competing submissions and weighed all relevant circumstances. He recognised the need to consider whether the cost of instructing leading counsel was reasonable and proportionate in all the circumstances and that any doubt should be resolved in favour of the paying party. I have not identified any material flaw in his reasoning. This was a careful and balanced judgment in which the costs judge arrived at a decision that was reasonably open to him’.


Whilst it will never be appropriate to instruct Leading Counsel to appear at first instance in an action of relatively modest value, there will be many examples of such cases where it is entirely appropriate for Leading Counsel to be instructed having regard to the issues which are likely to arise.  If a claim is contemporaneously flagged as raising an important point of principle, it may very well be reasonable to instruct Leading Counsel.  Ultimately, consideration would also need to be given to managing the proportionality of costs overall.