Simon Coram v D R Dunthorn & Son Ltd

On a standard-basis detailed assessment, the question is whether instructing Leading Counsel was reasonable and proportionate in the circumstances. The relevant considerations include the nature and importance of the case, its value, wider significance, complexity, novelty, specialist requirements and the need for senior advocacy. The fact that a competent junior Counsel could conduct the case is not the test. The assessment must apply the proportionality requirements in Civil Procedure Rules 1998 Parts 44.3 and 44.4, and any doubt is resolved in favour of the paying party. Obiter observations in an earlier judgment should not be treated as though they formed part of the decision necessary to dispose of that case.

The claimant, as executor of his mother’s estate, pursued a mesothelioma claim arising from alleged secondary exposure to asbestos. The claim settled before trial, with the defendant agreeing to pay costs subject to detailed assessment.

The claimant claimed the brief fees of both Leading and junior Counsel. On provisional assessment, Leading Counsel’s fees were disallowed and £10,000 was allowed for junior Counsel. The claimant requested an oral review and sought to introduce a further statement from Leading Counsel. The issues were whether the statement could be admitted and whether the instruction of Leading Counsel was reasonable and proportionate.

1. The claimant was entitled to amend his Replies between the provisional assessment and the oral review without first obtaining permission. The court retained power to disallow the amendment or impose conditions, including costs conditions, under paragraph 13.10 of the Practice Direction to Civil Procedure Rules 1998 Part 47. The further statement was admitted because any prejudice to the defendant was minimal.

2. The applicable test for instructing Leading Counsel was the six-factor approach identified in Juby v London Fire and Civil Defence Authority and cited with approval in Seepersad v Persad [2004] UKPC 19: the nature of the case; its importance to the client; the likely damages; its wider importance; particular requirements such as specialist advice or advocacy; and any other reason for requiring an experienced senior advocate.

3. That test had to be applied together with the standard-basis requirements in Civil Procedure Rules 1998 Parts 44.3 and 44.4. Costs must be reasonably and proportionately incurred and proportionate in amount. Any doubt must be resolved in favour of the paying party. The mere fact that a junior Counsel was capable of conducting the case was not the correct test.

4. The evidence did not adequately explain why an additional liability of £50,000 was incurred for Leading Counsel approximately one month before trial. There was no evidence from the conducting solicitor or junior Counsel explaining the decision. The case’s value, its category C listing, and its complexity and importance did not, taken together, justify the additional fee. The need for competent cross-examination and the technical expert evidence did not itself establish the need for a Leader.

5. The court also declined to treat the obiter observations in Bannister v Freemans Plc as though they created a novel or unusually difficult issue. Those observations were unnecessary to the result in that case and should not be elevated into something more significant.

6. The provisional assessment was not disturbed. Leading Counsel’s fees remained disallowed and the allowance for junior Counsel remained £10,000.