The High Court has dismissed an appeal against a ruling that hourly rates for a clinical negligence case were too high - despite accepting the question of reasonableness was not fully addressed.
The claimant in JXA v Kettering General Hospital NHS Foundation Trust had appealed the decision of Master Nagalingam that their costs for fighting the £20m case were excessive.
On appeal, Mr Justice Goss accepted the Master had erred in not directly having regard to the importance of the litigation to the claimant - although the judge at first instance had recognised the complexity of the litigation.
But Mr Justice Goss insisted that that Master retained a ‘broad discretion’ to decide on a reasonable band for costs, notwithstanding this failure to answer the question of importance.
The case related to the claimant’s birth in October 2010, following which he suffered quadriplegic cerebral palsy. Solicitors were engaged in March 2013 and the case has since been settled on the basis of 90% liability attaching to the defendant NHS trust.
The claimant’s mother and litigation friend selected Paul McNeil, a senior partner at Fieldfisher LLP in London, to advise the family as a result of an internet search and through his expertise in clinical negligence claims.
The rates contended for had been £380 an hour for a Grade A partner, which would rise incrementally each year after March 2013. Hourly rates were claimed at £150 for a Grade D trainee or paralegal and £270 for a Grade C solicitor from January 2017.
Instead the Master determined the hourly rates would be £350 for a Grade A partner, £200 for a Grade C assistant solicitor and £150 for a Grade D trainee or paralegal.
Claimant lawyers argued the Master applied the wrong test for reasonable costs and failed to have any regard to the interest of the claimant. It was advanced that the Master gave undue weight to less relevant factors, including the availability of alternative and unnamed solicitors in other locations outside London.
The defendant insisted the Master was ‘clearly aware’ of the principles to be applied and was justified to rule as he did.
Mr Justice Goss, sitting alongside Costs Judge James, said it was not entirely clear how the Master reached his decisions but he had applied his knowledge of hourly rates to assess that costs were too high.
‘He recognised the gravity and complexity of the case and allowed rates significantly in excess of the rates for summary assessment,’ added the judge.
‘Although the claimant technically succeeds in relation to the first ground of appeal, the outcome of the appeal is that the hourly rates found by the Master are, nevertheless, the appropriate rates for this claim.’
Fieldfisher declined to comment.