England and Wales High Court (Senior Courts Costs Office) Decisions

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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Cullen v Freed & Ors [2000] EWHC 9017 (Costs) (10 November 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2000/9017.html
Cite as: [2000] EWHC 9017 (Costs)

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This summary of a judgment has been obtained from the Supreme Court Costs Office pages on the HM Courts Service web site. The citation used by BAILII is not an officially approved citation. The full text of the judgment may have an official Neutral Citation issued by the court, and may be available elsewhere on BAILII.

 

 

 No.17 of 2000

Cullen v Freed & Ors

10 November 2000

Mr Justice Eady Sitting With Assessors

 

The costs in question were claimed against the CLS fund only. The solicitors acted for the Claimant in professional negligence proceedings against former solicitors. The former solicitors had conducted actions against a surveyor and a bank, but those actions had been dismissed for want of prosecution. The solicitors now claiming costs acted for the Claimant from August 1994 until June 1996, when he changed solicitors. The professional negligence proceedings came to an end, and the legal aid certificate was discharged, in October 1998 following the Claimant's death.

The bill claimed profit costs at the prescribed rates, plus enhancement of 67%. On taxation, the District Judge allowed all the prescribed rates claimed, but refused to allow any enhancement. Objections were brought in and the District Judge affirmed that decision. In his written reasons, he accepted that the case involved exceptional circumstances and complexity, but ruled that the decision whether to grant enhancement was a discretion and that discretion ought to be exercised in the light of all the circumstances. He ruled that, those circumstances must include the following:-

(a) The solicitors achieved little by these proceedings.

(b) The case had been conducted slowly.

(c) The time spent by solicitors was very very substantial.

(d) There were substantial reliance on Counsel.

(e) The negative outcome of the case: the client had died, and the claim was not pursued by his estate.

(f) The addition of enhancement on top of the very substantial costs already awarded would make the overall amount of costs disproportionate to the value of the claim, the achievement by the solicitors and the end result.

(g) The amount of costs already allowed was more than reasonable and any enhancement would make the amount of costs unreasonable.

On appeal the Learned Judge accepted the principles which the District Judge had acted on, but did not accept the way he had applied them.

(a)(e) The outcome of the case was not a relevant circumstance when considering the enhancement appropriate: reference was made to Hornsby v Leventhal [2000] 4 ALL ER 567; (2000) Costs LR 296, (Jackson J. sitting with assessors). In their conduct of the litigation, the solicitors had achieved considerable success, in particular, as to marshalling a vast number of documents and preparing the Statement of Claim.

(b) The solicitors were not responsible for the slow progress which had been made, most of which was caused by a difficulty over obtaining papers from previous firms and concerning delays by the Legal Aid office. That said, the real point of principle here was that the District Judge thought that the case had not been conducted with despatch and there was no reason to dissent from that view.

(d) The only excursion to Counsel was to obtain an opinion: this was a requirement of the legal aid certificate.

(f)(g) In drawing the proportion between the value of the claim and the amount of costs claimed, the District Judge took the value of the claim as £100,000, whereas, the solicitors strongly argued that the true value of the claim was likely to exceed £150,000.

In determining the appropriate enhancement to allow, it was necessary to consider the various factors set out in Regulation 5(3) of the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994. Of particular note here were the weight and complexity of the case, which affected all of the profit costs claimed and the degree of responsibility taken by the senior fee earner. The Learned Judge allowed enhancement of 33% on all profit costs in the bill, with the exception of the documents item claimed in respect of the senior fee earner. In respect only of that item, the Learned Judge awarded enhancement of 75%.