England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE COTRAN)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LADY JUSTICE HALE: This is the defendants' application for permission to appeal against the orders of His Honour Judge Cotran, sitting with assessors, in the Wandsworth County Court on 23rd March 2001. They dealt together with two appeals from decisions of District Judge Gittens. The issue in both was whether it was reasonable for the claimants, who live and work in Luton, to instruct London solicitors to act for them in actions for personal injuries suffered as a result of accidents at work. The district judge held that it was reasonable, and that decision was upheld on appeal. This is, therefore, a second-tier appeal governed by section 55(1) of the Access to Justice Act 1999: permission can only be given if the case raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
2. Mr Gibbs claimed damages when the bonnet of a car upon which he was working fell on to his hand and bruised it. A claim was issued and settled in March 2000 for £1,750, with costs. The costs claimed were nearly £6,500 at hourly rates varying from £90 to £105. The bill was assessed by the district judge at only a small amount less than had been claimed. Mrs Lyons tripped over a kerb at work. Liability was originally disputed but found in her favour. The claim was then settled in October 1999 for £30,000. The bill was assessed at over £30,000 and the hourly rates claimed were from £85 to £105. The defendant's case is that Luton rates for the same period ranged from £65 to £85.
3. Both the claimants were trade union funded. Their union habitually instructed a firm of solicitors, Rowley Ashworth, in Wandsworth.
4. This position has been considered in two leading cases in this court Wraith v Sheffield Forgemasters; Truscott v Truscott [1998] 1 WLR 132, and Sullivan v Cooperative Insurance Society [1999] Costs LR 158. One of those concerned serious personal injuries suffered in Sheffield. The other concerned asbestosis suffered in Manchester. His Honour Judge Cotran quoted Kennedy LJ from Wraith; and May LJ from Sullivan. May LJ said this at page 165:

"Thus in determining whether it is objectively reasonable to instruct lawyers who may be said to be out of the way or a luxury, the court takes account of and balances a wide range of relevant circumstances. The fact that a union or other organisation, no doubt for understandable reasons, habitually uses a particular firm of solicitors is a relevant factor but of limited relevance on taxation in an individual case. Litigants are entitled to engage any lawyer they choose, and from a subjective point of view the choice may be entirely reasonable, but the question is to be judged objectively. The fact that a case has no obvious connection with London is a relevant factor, the more so if the case does not require expertise only to be found there".

5. The defendants do not say that the court misdirected itself as a matter of principle. They say that the practice, in particular in the Wandsworth County Court, is open to challenge. These were Luton cases with no obvious connection with London: the parties, the witnesses, even the experts, were based in or near Luton. These were entirely routine claims not requiring particular expertise. Mr Haycroft, who appears for the defendants on this application today, however emphasises that the argument is not so much about whether it is reasonable to instruct the particular firm of solicitors. He accepts that the claimants can go to whatever firm of solicitors they chose: that is their right. The argument is about whether having chosen a particular firm of solicitors it is reasonable for those solicitors to charge what might be termed "luxury rates" in a perfectly straightforward case. If the case is one which a local firm of solicitors could do with complete competence at a lower charging rate, it is argued, then that is the charging rate which should be applied by the London solicitors. That argument has emerged with much more clarity as put before this court by Mr Haycroft than it emerged in the skeleton argument included within the bundles.
6. For my part I have some doubt about whether the criteria in section 55(1) of the 1999 Act are fulfilled. Mr Haycroft accepts that the case does not raise an important point of principle and that there is no other compelling reason for the Court of Appeal to hear it, but he argues that this is an important point of practice. It means, in effect, that all the many accidents taking place at the various Vauxhall operations in Luton, however simple, however straightforward, are dealt with by this firm of solicitors, and this firm of solicitors is being allowed to charge its full charging rates rather than giving some sort of a discount to recognise that otherwise there would be no good reason for using them and that that is an important point of practice.
7. I have some doubts as to whether volume alone is a sufficient ground for saying that it is an important point of practice, but, as Mr Haycroft has put it so attractively, what I propose to do is to adjourn the application for an inter-partes hearing with appeal to follow if permission is granted. That would give a full court the opportunity of deciding whether they do think that the criteria in section 55 are met, and the opportunity of saying that they are not before, if they are met, going on to decide the merits of the case.
8. MR JUSTICE ASTILL: I agree for all the reasons that my Lady has given.
(Application adjourned; costs to be costs in the appeal).