The appellant Ministry of Defence (MoD) appealed against a ruling of Master Campbell at the Senior Courts Costs Office upholding a decision of the principal costs officer that it had been reasonable for the Respondent (R) to instruct solicitors (F) in Central London.
At the time of instruction, R had been 82 and living in Broadstairs, Kent. He had worked for the MoD and his work had brought him into contact with asbestos. He sought medical advice in November 2007, complaining of breathlessness.
n December 2007, R saw a consultant in respiratory medicine, who advised that asbestosis was the main cause of his breathlessness and that he probably had cancer. He told R that the condition was advanced and that there was no treatment. He mentioned the name of F.
By this time R was able to walk very little, and his daughter had moved in to care for him. She contacted F, who accepted instructions to act. A settlement was reached before R’s death in May 2008.
The master had to decide whether the Respondent had made a reasonable choice in instructing a firm of solicitors in Central London rather that one in his own locality.
On the issue of whether it had been reasonable for R to instruct solicitors in Central London as opposed to a firm in Kent or Outer London, the master had regard to the list of factors in Wraith v Sheffield Forgemasters Ltd (1998) 1 WLR 132 CA (Civ Div) as well as several other factors.
He stated that it was common ground that the matter was of high importance to R. He concluded that the matter was urgent, that there were no factors connecting the case to a particular location and that F were accessible, as had been shown by a home visit that they had made.
The master also concluded that
“it would not be objectively reasonable to expect an 82 year old man who had just been informed that he was incurably ill, to undertake a trawl of local solicitors, in circumstances where an experienced consultant had given him the name of [F] as solicitors who specialised in this field“
For the same reasons, he found that it had not been unreasonable for R not to enquire into the level of F’s fees. The MoD argued that the master had been wrong not to hold that R should have instructed other solicitors in Kent or Outer London.
HELD: It was not in dispute that a reasonable litigant would normally be expected to investigate the hourly rates of solicitors whom he might instruct, and that he would normally be expected to consider a number of other factors, including the time and costs associated with geographical location, before choosing whom to instruct, and to take advice on these and other matters before proceeding. He had to keep down the costs of litigation, and that might well mean that if he went to London solicitors who charged London rates for a case which had no obvious connection with London, and which did not require expertise only to be found there, he might not recover costs on the basis of those rates.
However, the master had been entitled to reach the decision that he had in the instant case. What the master had to do was to exercise his own judgment on a number of relevant considerations, and there was no error in what he did. He had considered the submission that R should have investigated, or taken advice on, the level of fees that would be charged by F; he rejected it, because of R’s age and the urgency of the case. The list given by Kennedy L.J. in Wraith was a list prepared in that case. It was not of general application, although it certainly was useful. A number of the points that the master considered, and rightly considered, in this case did not appear in that list, such as H’s age and the urgency of the case, Wraith considered.
Link to Judgment