Gazley v Wade & Anor

On an appeal from a costs judge, the appellate court must review rather than rehear the decision. Intervention is justified only where the decision is wrong or unjust because of a serious procedural or other irregularity. Where the lower court has exercised evaluative judgment, the appellate court must respect the generous ambit within which reasonable disagreement is possible.

The reasonableness of instructing solicitors is assessed objectively, but in the circumstances confronting the litigant when the decision was made and without hindsight. Whether specialist London solicitors are reasonably required in defamation proceedings depends on the particular case. Competent regional solicitors may use specialist counsel where appropriate.

The claimant brought a libel claim after The Sun published his photograph beside allegations that another man was a paedophile. Liability was admitted and an apology was published. The claimant initially consulted local solicitors, then instructed Carter-Ruck, a specialist London firm.

On detailed assessment, the Costs Judge concluded that it had not been reasonable to instruct London libel specialists and assessed recoverable costs by reference to Norwich-area rates. The claimant appealed. The central issues were the proper scope of appellate review, the relevance of later evidence, and whether regional litigation solicitors, assisted by specialist counsel if necessary, could deal with the outstanding issues.

1. Appeal dismissed. The appeal was limited to a review under CPR 52.11. The court could interfere only if the Costs Judge’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The reviewing court must not substitute its own assessment for an evaluative decision falling within the generous ambit within which reasonable disagreement is possible. The approaches in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 and Solutia UK Limited v Griffiths [2001] EWCA Civ 736 were applied.
3. The reasonableness of instructing particular solicitors had to be judged objectively, without hindsight, and in the circumstances confronting the litigant when the decision was made. The considerations identified in Wraith v Sheffield Forgemasters Limited [1998] 1 WLR 132 were relevant, including importance, complexity, location, dissatisfaction with existing solicitors, recommendation, accessibility and comparative fees.
4. The Costs Judge erred in treating the matter simply as a Norfolk case. It was a grave nationwide libel against London-based defendants, and proceedings or a hearing under section 3 of the Defamation Act 1996 would probably have occurred in London. That error did not make the decision wrong overall.
5. The outstanding issues were limited, although they included damages, an improved apology and the possible use of the statutory offer of amends procedure. Competent regional solicitors could deal with them with access to specialist counsel. Specialist London solicitors might be justified in more complex cases, but the issue remained fact-sensitive.
6. The late evidence did not establish an intention to mislead or an ambush and did not materially undermine the Costs Judge’s reasoning. His decision remained within the permissible range of reasonable disagreement.

High Court (Queen's Bench Division): Costs Judge Simons ruled on 9 March 2004 that it had not been reasonable to instruct London libel specialists and assessed recoverable costs by reference to Norwich-area rates. The High Court dismissed the claimant’s appeal.