Royal Devon and Exeter NHS Foundation Trust v Acres

On an appeal concerning detailed assessment, the question whether it was reasonable to instruct solicitors in a particular location must be assessed objectively in the circumstances existing when the instruction was given. The court must consider the litigant’s interests, the importance and complexity of the matter, accessibility, prior advice and the likely fees. The availability of competent local solicitors is relevant but is not the ultimate test.

An appellate court reviews the costs judge’s discretionary decision. It should intervene only where the decision is wrong, unjust because of a serious procedural irregularity, or outside the generous ambit of reasonable disagreement. If the choice of solicitor was reasonable, the appropriate regional rates for that solicitor may be allowed, subject to any justified uplift.

The Trust appealed, and Mrs Acres cross-appealed, against a costs ruling following settlement of her employment-related personal injury claim. The costs judge rejected a challenge to the retainer, held that the costs were not disproportionate, and allowed Grade A rates based on Bristol rates with a 30 per cent uplift, producing an hourly rate of £280.

The Trust argued that a competent local firm could have conducted the claim and that the uplift was unjustified. Mrs Acres contended that, after the local firm initially instructed had declined the claim on its merits, it was reasonable to instruct Howard Kennedy, the professional association’s regular solicitors. The central issues were whether the London instruction was reasonable and what hourly rate should be allowed.

1. Appeal and cross-appeal. The Trust’s appeal failed. Mrs Acres’ cross-appeal succeeded. Since the instruction of Howard Kennedy was reasonable and there was no objection to their rates if that instruction was justified, Howard Kennedy’s rates applied.
2. Appellate approach. The appeal was a review rather than a rehearing. Intervention was justified only if the costs judge was wrong or the decision was unjust because of a serious procedural or other irregularity. The Master had considered the relevant factors and had not applied the wrong legal test.
3. Reasonableness of the instruction. The Master had erred by attributing Thompsons’ refusal to act to the absence of a conditional fee agreement. The assessment had to be made by reference to the circumstances known when Mrs Acres and the Society decided to obtain further advice. Thompsons’ letter stated that the claim lacked reasonable prospects. In that context, it was reasonable to obtain a second opinion from Howard Kennedy, whom the Society trusted to assess the claim on an ordinary retainer.
4. Hourly rate. There was no error in using Bristol as the regional comparator. The Master had identified Bristol as a centre with firms capable of undertaking this work. The 30 per cent uplift was within his discretion, having regard to the evidence about the claim’s complexity and the expertise required.
5. The decision did not provide a general entitlement to central London rates in this category of case.

1. High Court (Queen's Bench Division): Sir Raymond Jack refused permission on the proportionality ground and on the hourly-rate issue initially; Eder J later granted permission on the hourly-rate ground and granted permission for a cross-appeal. Mr Justice Cranston dismissed the Trust’s appeal and allowed Mrs Acres’ cross-appeal.