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 Thursday, 21st February 2002

Thursday, 21st February 2002

1. THE PRESIDENT: I would like to make the first point that we are dealing with an application for permission to appeal and unless it is allowed and the appeal is heard the judgment is not reportable.
2. I will ask Lord Justice Kay to give the first judgment.
3. LORD JUSTICE KAY: Before the court are two renewed applications for permission to appeal against the decision of His Honour Judge Cotran, sitting in the Wandsworth County Court with assessors, given on 23rd March 2001, whereby he refused two unrelated appeals which had been heard together because they raised the same issue. In each case the appeal was against the decision of District Judge Gittens as to the costs to be allowed to the successful claimants in claims for personal injuries suffered in the course of their employment.
4. The first claim was a claim by David Lee Gibbs against IBC Vehicles Ltd. He had suffered relatively minor injuries when the bonnet of a vehicle on which he was working in the defendant's factory at Luton fell on his hand causing some bruising. He instructed solicitors making use of the services of his union to instruct such solicitors. The firm in question were based in Wimbledon, and as a result of that proceedings were commenced in the Wandsworth County Court. No application was made to transfer the proceedings.
5. In due course the proceedings were settled and the defendant agreed to pay damages of £1,750 and the claimant's costs to be taxed if not agreed. The bill of costs prepared by the claimant's solicitors amounted to over £6,400. This was disputed, and when the matter went before District Judge Gittens for assessment he allowed virtually all of those costs.
6. The second claim again had arisen in Luton, this time brought by Julie Ann Lyons against Vauxhall Aftersales. She had been walking within her employer's premises when she tripped over a curb and suffered injury. Again through her union, she instructed the same firm in Wimbledon and as a result, again proceedings were commenced in the Wandsworth County Court.
7. Liability was disputed and, following the trial which took place at Wandsworth, there having been no application to move the case, Mrs Lyons obtained judgment for damages to be assessed. Damages were subsequently agreed at £30,000. In due course the bill of costs was submitted. That was disputed and District Judge Gittens allowed costs of a little over £30,000 in respect of the case.
8. The issue that it is sought to raise on each of these applications relates to the rate of charge by the claimant's solicitors for work done by them on each case. In each, they charged at rates appropriate to the area where they were based, ie Outer London rates for solicitors. The defendants contend that these were straightforward personal injury cases not requiring any expertise, and that as such, they were well within the compass of local solicitors from Luton (the place where the accidents occurred) who, it was contended, would have charged significantly less than the rate charged by Outer London solicitors.
9. Both the district judge and Judge Cotran in his assessment correctly identified the legal principles to be applied; and that is acknowledged on behalf of the applicants. Both made reference to the two leading cases in this field, Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132 and Sullivan v The Co-Operative Insurance Society Ltd [1999] 2 Costs LR 158.
10. The first issue that falls to be considered is whether these proposed appeals (being second appeals) satisfy the test laid down in section 55 of the Access to Justice Act 1999. That section provides that the court shall not hear an appeal which is a second appeal, unless it considers that either "the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it."
11. The submission made to us by Mr Post, on behalf of the applicants, is that whilst he accepts that these proposed appeals raise no important point of principle, nor can he suggest that there is any other compelling reason for the Court of Appeal to hear these appeals, they do raise an important point of practice. His submission is that these are cases similar to many cases that arise and come before the courts where claimants have instructed, usually via unions, solicitors from outside the immediate area, to conduct the appeal on their behalf. In those circumstances, he submits that there is a point of practice of importance which arises.
12. During the course of his submissions we invited him to identify for us the particular point that he suggests arises. Without in any way being discourteous to him it was not a task that he found easy because it took him several attempts to try to formulate some point. In the end he contends that the point is this. It is not objectively reasonable for a claimant in ordinary personal injury litigation to instruct solicitors outside the general area of the scene of the accident or his place of work or his residence.
13. We have to consider first, therefore, whether that point does arise and is one upon which this court could helpfully give guidance which would be of general importance in a practical way for consideration of cases of this kind. It is quite clear from the two authorities (to which I have already referred) that the court recognises that decisions of this kind are decisions to be made on the particular facts of the case. The general principles were set out in those two authorities, namely that where litigation was taking place in one part of the country where there was a perfectly adequate base of both solicitors and counsel - in one case Manchester, in the other case Sheffield - then, in deciding whether to allow the costs of solicitors from some other area, it was not a factor of any great weight that the solicitors instructed, who were London solicitors, were solicitors habitually used by the union who had instructed them on behalf of the claimants.
14. Nothing in either of the authorities in any way diminishes from the concept that these matters have to be addressed on a case by case basis. The argument here is that it is wrong in a case of this kind, arising at factories in Luton, for solicitors from Wimbledon to be instructed. When, however, one delves into that submission and seeks to see what the principle is that is to be enunciated by this court, it becomes very difficult to see how the court would give guidance of the general kind that is suggested.
15. We are told that there are a group of courts, including Luton, where there is a general acceptance of rates that are properly to be allowed to solicitors. That group does not include all places nearby, for example it does not include Watford. The Watford rate is different and that in turn is different from the Outer London rates, which would include the areas not very far from both Watford and Luton in the north of the Greater London area. Thus within a relatively short distance of Luton one will find different areas where the solicitors will customarily charge different rates, no doubt in part because they will have different overheads to take into account.
16. I do not begin to see, in the circumstances of this case, how the court could properly give the sort of general guidance that it is suggested would be helpful in a range of cases. There may be a variety of reasons why it would be appropriate, for example for a claimant, who has had an accident in Luton at their place of employment, to instruct solicitors who come from the areas to which I have already referred, such as Watford, and the northern edges of the Outer London area. The court can only determine the reasonableness of what occurred on a case by case basis and not by following general guidance.
17. I am satisfied that the proposed appeals in this case simply do not satisfy the requirements of section 55 of the 1999 Act. What we are being invited to do, in effect, is to re-hear a distinct matter and not to deal with some important point of practice which would have general application.
18. For those reasons I would refuse each of these applications.
19. LORD JUSTICE THORPE: I agree.
20. THE PRESIDENT: I also agree so.
(Applications refused; costs agreed in the sum of £5,800 to be paid by the appellant).