Leading Counsel instructed to attend Mesothelioma trial deemed not reasonable or proportionate

The matter of Coram -v- DR Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) concerned an oral review of a provisional assessment. The case concerned a claim brought by the Deceased’s son who died as a result of her secondary asbestos exposure, caused by washing her husband’s work clothes. The Defendant defended the claim and Master Davison directed, at the CMC, that the trial should be heard by a category C Judge, with a time estimate of three days. The matter was subsequently set down for a trial to take place in a 5-day window commencing on 2 March 2022.

On 28 January 2022, the Claimant’s solicitor instructed Mr Harry Steinberg KC and Ms Gemma Scott, junior Counsel who had been instructed during the proceedings, to advise in conference and attend the trial. The conference took place and the matter subsequently settled for the sum of £75,000.00 gross with the Defendant to pay the Claimant’s costs. As such, the trial date was vacated and a consent order was filed recording the settlement.

The Claimant served their bill of costs containing abated brief fees for both Leading and Junior Counsel, this fee including the conference that had taken place. Leading Counsel’s brief fee had been abated from £50,000.00 to £25,000.00 and Junior Counsel’s from £25,000.00 to £12,500.00.

The parties agreed all items in the Claimant’s bill of costs save for Counsels’ fees. The Defendant submitted in the Points of Dispute that:

“Gemma Scott would have been more than qualified to conduct this three day trial on her own. The instruction of both Gemma Scott and Leading Counsel is unreasonable and Junior Counsel fees alone are offered….

On the basis of no fee for a QC, the Defendant will agree the fee for the Junior Counsel – item 626 – at £10,000 plus VAT and success fee.”

The Claimant served Replies to the Points of Dispute asserting that it would have been the first occasion on which obiter comments made in Bannister -v- Freemans Plc [2020] EWHC 1256 (QB) (a secondary exposure case) were to be tested at trial. It was also asserted that this case was much more difficult than Bannister and that there was a high chance that, regardless as to which party succeeded at trial, the case would have been appealed to the Court of Appeal and possibly to the Supreme Court. It was said that the Defendant had chosen to advance novel arguments and that it had obtained detailed medical and engineering evidence to support them when it could have fought the case in a more straightforward way. The case was therefore novel and had some public importance.

Due to the amount in dispute being below the £75,000.00 threshold, the matter proceeded to provisional assessment. Deputy Costs Judge Joseph disallowed Leading Counsel’s fees and allowed only £10,000.00 for Junior Counsel. However, it was noted that the Judge did not disallow the Leading Counsel’s fees due to the matter being within the capabilities of Junior Counsel as was submitted in the points of dispute, but upon considering whether the instruction of Leading Counsel was proportionate and reasonable, when assessing on the standard basis, any doubt should be resolved in favour of the paying party.

The Claimant challenged the provisional assessment by means of an oral review. However, Deputy Costs Judge Joseph stated that he had not been persuaded that it was reasonable and proportionate for Leading Counsel to have been instructed.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

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