Higgins v Ministry of Defence

On an appeal concerning recoverable solicitor costs, the reasonableness of instructing a higher-rate or geographically distant firm must be assessed by weighing all relevant circumstances. The factors identified in Wraith v Sheffield Forgemasters Ltd; Truscott v Truscott [1998] 1 WLR 132 are useful but neither comprehensive nor exclusive. Matters such as the claimant’s age, the urgency of the claim, accessibility, the importance of the litigation and the availability of suitable alternatives may be relevant. An appellate court reviewing a costs decision should respect the first-instance judge’s evaluation of those factors and interfere only for an identified error of principle or an unreasonable decision.

The claimant, an elderly former serviceman suffering from asbestos-related illness, instructed a specialist London firm after a consultant mentioned its name. The claim was pursued urgently because his life expectancy was less than six months, and it settled for £112,500, with costs payable by the defendant.

The Principal Costs Officer allowed the London firm’s costs. Master Campbell dismissed the defendant’s appeal. The Ministry of Defence appealed to the High Court, arguing that the claimant could reasonably have instructed equally competent solicitors in Kent or Outer London at lower guideline rates. The central issues were whether the instruction of the London firm was reasonable and whether the Master had applied the correct approach on appeal.

1. Appeal dismissed. The court upheld Master Campbell’s decision to allow the costs claimed by the London firm.
2. Under CPR 44.4(2), only costs reasonably and proportionately incurred may be allowed, with doubts resolved in favour of the paying party. The assessment of whether a claimant reasonably chose a particular solicitor requires consideration of all relevant circumstances. It must not be reduced to a comparison between London and local hourly rates.
3. The factors listed in Wraith v Sheffield Forgemasters Ltd; Truscott v Truscott [1998] 1 WLR 132 may assist, but they were formulated for the circumstances of that case and are not a comprehensive or exclusive checklist. Relevant considerations may include the importance and complexity of the matter, geographical connections, accessibility, specialist competence, urgency, the claimant’s age and the practical time available to investigate alternative firms.
4. Master Campbell had considered the relevant matters. In particular, the claimant’s age and the urgency of the case justified treating his failure to investigate alternative firms or compare fees as neutral. There was no comparable geographical connection with another location offering suitable but cheaper legal advice, and the specialist firm was accessible. The decision was therefore within the range of reasonable evaluative judgments.
5. The appeal was a review rather than a rehearing. The appellate court should not interfere with the weight assigned to relevant factors unless the judge applied an incorrect principle, considered an irrelevant matter, ignored a relevant matter or reached a decision that no reasonable tribunal properly directed could have reached. The court found no such error.

• High Court (Queen's Bench Division): appeal from the order of Master Campbell dated 9 June 2009 dismissed.
• Senior Costs Office: Principal Costs Officer O’Riordan allowed the claimant’s costs, including the costs of instructing the specialist London firm.