KMT & Ors (Chidren) v Kent County Council

On an appeal by way of review from a costs assessment, the appellate court must identify an error of law, misdirection, irrelevant consideration or a decision outside the range of reasonable outcomes. An objective assessment of reasonable and proportionate costs does not prevent the court considering whether the client reasonably chose the particular solicitors. Once that choice is justified, the appropriate regional rates may be used to assess the amount. Guideline rates may also be uplifted where the applicable statutory factors justify it, including in a London case. An agreed broad-brush assessment will rarely be disturbed on appeal unless a clear error is demonstrated.

Kent County Council appealed decisions made by Costs Judge Simons following detailed assessment of the costs incurred in claims brought by four children represented by the Official Solicitor. The claims concerned alleged failures to protect them from abuse and had settled before trial.

Permission was granted on three grounds: whether the hourly rates had been assessed using a subjective rather than objective test; whether an uplift was permissible after selecting Central London guideline rates; and whether the Costs Judge had made an arithmetical error in assessing documentary time. The appeal concerned the proper scope of appellate review and the application of the costs principles in the CPR.

1. The appeal was dismissed. Under CPR 52.11(3), an appeal by way of review requires identification of legal error, misdirection, irrelevant or omitted considerations, or a decision outside the range of reasonably possible outcomes. The principles in Tanfern Ltd v MacDonald [2000] 1 WLR 1311 and Solutia v Griffiths [2001] EWCA Civ 736 were applied.

2. The Costs Judge had applied the objective test required by CPR 44.5. The question whether it was reasonable to instruct the particular solicitors was distinct from the question of the reasonable amount to be allowed. The approach in Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132 was followed. The Council had accepted that instructing the solicitors was reasonable, so the issue was the appropriate rates. Central London guideline rates were a reasonable basis because the solicitors’ appointment had been justified. The rates, although high, remained within the range reasonably open to the Costs Judge.

3. A further uplift was not legally barred merely because Central London rates had been selected. The factors in CPR 44.5(3) remained relevant, including the importance, complexity, novelty and difficulty of the matter, the skill and responsibility involved, the time spent, and the place and circumstances of the work. The Costs Judge had understood that the guideline rates already contained an historical uplift and had explained his additional uplift sufficiently.

4. The challenge to the documentary-time assessment also failed. The parties had agreed that a broad-brush approach should be taken. The transcript showed that the Costs Judge had allowed some work involving the Legal Services Commission because it overlapped with other work. His assessment was more nuanced than the Council’s calculation suggested, and no simple arithmetical error was established.

• High Court (Queen's Bench Division): Appeal from decisions of Costs Judge Simons following detailed assessment. Permission to appeal was granted by Globe J on 14 March 2012. The appeal was dismissed.