A costs judge has disallowed the £25,000 claimed for unnecessarily instructing leading counsel, with a warning that parties cannot expect to recover ‘unlimited’ costs.

Deputy Costs Judge Joseph, sitting in Coram v D R Dunthorn & Son Ltd, said the addition of a KC to the claimants’ legal team in an industrial disease case was neither reasonable nor proportionate.

The judge said he was ‘troubled’ by the absence of any first-hand explanation why such extra costs were incurred in the build-up to the trial, and ruled that the benefit of the doubt should lie with the defendant.

Joseph added: ‘The days in which litigants could deploy almost unlimited resources to fight cases and expect to recover those costs from the losing party (absent an indemnity costs order) have long since gone with the advent of the Woolf and Jackson reforms.

‘Costs which have been reasonably and necessarily incurred may still be reduced if they are considered to be disproportionate.’

The court heard that the mesothelioma claim was initially defended and the case was assigned to a three-day trial to be presided over by a category C judge.

Around five weeks before the trial date, the claimant’s solicitors delivered briefs to leading counsel Harry Steinberg KC and junior counsel Gemma Scott, instructing them to advise in conference and appear at trial.

The claim settled for £75,000 before trial, with Steinberg and Scott charging fees of £25,000 and £12,500 respectively (both had been halved as the case did not go to trial).

The defendant agreed all items on the costs bill except counsel fees, arguing that Scott would have been ‘more than qualified’ to conduct the trial on her own. The judge disallowed Steinberg’s fees altogether and allowed £10,000 for Scott’s.

On appeal, the claimant submitted this was a complicated and difficult case which required careful cross examination of expert witnesses at trial and could end up in the Court of Appeal or Supreme Court. Steinberg had brought specialist skill and experience to the case which had helped to bring about settlement, and deploying leading counsel on any appeal – as the defendant suggested the claimant should have done – would have been too late.

The defendant said there was no evidence why Scott had advised the claimant to instruct a leader. There was no attempt to flag up to the court this was a case suitable for a higher category judge based on the importance of the case, and nothing from the conducting solicitor or junior counsel to explain the instruction of a leader.

Joseph said it was ‘surprising’ that the claimant had not challenged the listing of the case given how novel and complex it was purported to be. He accepted there would have been a need for competent and probably detailed cross examination of the various witnesses, but that, of itself, did not justify the instruction of leading counsel.

 

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