Higgs v Camden & Islington Health Authority

On an appeal from a costs assessment, the court should decide whether the costs judge was wrong. It should not conduct a rehearing or undertake a further trawl through the bill merely to adjust individual items. Assessment of hourly rates is an evaluative exercise. Guideline rates and comparisons with other cases are only starting points and may have limited value where the case is unusually complex and the evidence is incomplete. A single charging rate is preferred, but an A plus B analysis may still be used as an indicator when testing the reasonableness of that rate. The reasonable engagement and remuneration of solicitors and counsel depend on the circumstances of the litigation, including its value, complexity, difficulty, importance, skill, responsibility and demands. Exceptional rates in a particular case do not establish a norm.

The claimant recovered substantial damages in a clinical negligence claim concerning severe hypoxic brain injury sustained at birth. Liability remained in issue until shortly before trial, when the defendant admitted liability and made a substantial Part 36 offer, which the claimant accepted.

On detailed assessment, Costs Judge Rogers allowed, among other items, an hourly rate of £300 for the claimant’s senior partner, remuneration reflecting substantial delegation and an hourly rate of £350 for leading counsel. The defendant appealed on those three grounds. The central questions were whether the Costs Judge had adopted the wrong approach and whether his evaluative conclusions were wrong.

1. Appeal. The appeal was dismissed. The Costs Judge’s conclusions were within his discretion and had not been shown to be wrong.
2. Appellate approach. Applying R v Common Professional Examination Board, ex parte Mealing-McLeod (2000) Times, 19 April, an appeal from a costs judge is not a rehearing. A challenge to matters of assessment or judgment should not become a further trawl through the bill unless there is a sensible and significant complaint.
3. Solicitor’s hourly rate. Under CPR 44.5, the court must consider all the circumstances, including the parties’ conduct, the value and importance of the matter, complexity and difficulty, skill, specialised knowledge, responsibility, time and place of work. Guideline figures and comparative rates are broad approximations. Their value depends on the quality and relevance of the evidence. The Costs Judge was entitled to treat them as of limited assistance in this unusually demanding clinical negligence claim.
4. The CPR and Costs Practice Direction discourage the A plus B method and favour a single charging rate. Nevertheless, using that analysis as one measure or indicator did not amount to a misdirection. The rate of £300 per hour was high but reasonable on the evidence and the case’s particular features.
5. Delegation. The Costs Judge was entitled to conclude that the partner’s substantial personal involvement was reasonable. The appeal ground was inadequately particularised and would otherwise have required the inappropriate further review of the bill.
6. Counsel’s fees. Applying the approach in Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132, the question was whether it was reasonable to engage the particular silk, having regard to the reasonable interests of a claimant seeking skilled and efficient representation. The Costs Judge was entitled to find that the silk’s experience was required and that £350 per hour was at the top of, but not above, the permissible range.
7. The judgment did not establish £300 for a partner or £350 for leading counsel as normal rates. The conclusions were confined to the exceptional features of this heavy, difficult and high-value claim.

• High Court (Queen’s Bench Division): appeal from the decisions of Costs Judge Rogers on 24 April 2002. The appeal was dismissed.