Oral Contraceptive Group Litigation XYZ & Ors v Schering Health Care Ltd & Ors

On assessment of publicly funded counsel’s fees, a brief fee must cover the work reasonably required for representation at trial, including ordinary preparation, conferences with experts and counsel, and written submissions. Such work is not ordinarily separately chargeable after delivery of the brief. A separate fee may be justified only in an exceptional case, such as a fundamental change in the nature of the dispute. A case management conference or pre-trial review may likewise fall within the brief where it is part of, or could reasonably be anticipated as part of, trial preparation. The brief fee must be assessed by reference to the full history of the trial and all relevant costs factors, rather than by mechanically applying an hourly rate.

This was an appeal from a costs judge’s assessment of fees claimed by Lord Brennan QC in legally aided group litigation concerning alleged injuries from third-generation oral contraceptive pills. The claimants challenged the disallowance of fees for a case management conference, conferences with experts after delivery of the brief, and part of a claimed £250,000 brief fee.

The costs judge had reduced the brief fee to £199,500. The appeal concerned the proper application of the civil legal aid costs regime and the principles governing assessment of a brief fee.

1. Expert conferences. Meetings with experts after delivery of a brief are ordinarily part of trial preparation covered by the brief fee and daily refreshers. They cannot be charged separately merely because there was limited opportunity to meet the experts beforehand. Only a very exceptional development, such as an amendment or fresh expert report fundamentally changing the dispute, may take work outside the original brief.
2. Case management conference. The conference was part of the trial preparation covered by the brief. No general rule was laid down for case management conferences. A separate fee may be justified where the conference, pre-trial review or other post-brief application is not part of, and could not reasonably have been anticipated as part of, the preparation contemplated when the brief was delivered.
3. Assessment of the brief fee. A brief fee is not properly assessed by simply multiplying hours by an hourly rate. Time spent is relevant, but it is one factor among those in CPR 44.5(3), including complexity, difficulty or novelty, skill, specialised knowledge, responsibility, time, and the circumstances in which the work was done. The assessment must consider the full history of the trial as known at the time of assessment.
4. The litigation involved unusually complex bio-statistical evidence and extensive expert material. The costs judge’s figure fell outside the proper range. The appropriate brief fee was £250,000 less the accepted £500 deduction. The appeal was allowed to that extent.

• High Court (Queen’s Bench Division): The appeal from the costs judge’s decision of 22 May 2003 was allowed to the extent that the brief fee was restored to £250,000, subject to the accepted £500 deduction. The separate claims for the case management conference and expert conferences were rejected.
• The underlying claimants’ actions had previously failed at trial before MacKay J on 29 July 2002. Their costs were directed to be assessed under regulation 107 of the Civil Legal Aid (General) Regulations 1989.