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England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Martin v Holland & Barratt Ltd [2001] EWHC 9012 (Costs) (19 October 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2001/9012.html
Cite as: [2001] EWHC 9012 (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.11 of 2001
Martin v Holland & Barratt Ltd
19 October 2001
Mr Justice Holland sitting with Assessors
On the 16th January 1995 the claimant was sitting in a folding chair, working at a computer screen. The chair collapsed. He fell back against the wall injuring his neck and back. On 6th August 1997 Judgment was entered by consent with damages to be assessed. Certain payments into court were made e.g., £5,4730.79 on 19th March 1998.Counsel advised in conference on 6th April 1998 and settled the Schedule of Damages on 27th May 1998. He claimed £435.00 and £440.00 respectively and was allowed £350.00 on each occasion. On Wednesday 6th October 1998 there was a further payment into court of £21,965.35. The total offer then stood at about £100,000. The trial had been fixed for Wednesday 28th October 1998 for 3 days.
On 14th October 1998 there was a conference with the client to advise on the payment into court.
On 15th October 1998 the brief to counsel was prepared and reached counsel the next day. The claimant’s solicitor also wrote to the defendant’s solicitor referring to their claim for some £200,000 (including general damages). The claimant was prepared to settle for £120,000 plus costs. They requested a response within 7 days. At this stage both sides raised issues on discovery and additional documents to go into the trial bundle.
On Friday 16th October the solicitors reached agreement and a draft order was sent to the defendant’s solicitors.The letter confirming the position was sent on the Monday.
The appeal proceeded on the basis that it was necessary to show that the District Judge exceeded the generous ambit within which a reasonable disagreement was possible. The judgement of Buckley J in Mealing MacLeod –v- The Common Professional Examination Board (Costs Law Report 2000 part 2 at page 224) was relevant.
The appeal concerned two issues raised by the defendant.
(a) Whether the brief fee of counsel claimed at £3,500 + VAT and allowed at £2000 + VAT was reasonable
(b) Whether the fee to the Orthopaedic surgeon claimed at £1,500 and allowed at £1,000 was reasonable.
Counsel’s Fees
Counsel’s fee sheet stated that Counsel was fully prepared. It appeared that the District Judge accepted that statement. She therefore allowed £2,350.00 + VAT for the conference on 14th October and the brief. The Judge and the assessors agreed that a brief fee at £3,500.00 was reasonable if the case had proceeded. Given the proximity of the conference on 14th October and the delivery of the brief on 15th October with the settlement the following day, the court reached the conclusion that the brief fee allowed by the District Juge was too high. It exceeded the generous ambit within which reasonable disagreement was possible. The conference should be treated as the conference on the brief. A reasonable discounted brief fee to include the conference and to reflect the early settlement should be £1,500 + VAT. Accordingly a brief fee at £1,150.00 should be allowed.
The Expert’s Fee
The expert’s terms of retainer were that his daily fee would be £1,500. per day. If the case settled more than a month before the trial the fee would be half. Inadvertently the claimant’s solicitor misinformed the defendant’s solicitor that the cancellation fee would be one half if the case settled less than a month before the hearing. The court had no hesitation in upholding the District Judge’s award of £1,000. The judge stressed the importance of good experts being able to make themselves available and to commit themselves to attend court. The expert had written to explain that he has already put in five hours of preparation before being notified of the cancellation. The date for the hearing had been specifically reserved. He explained that he had not been able to reschedule meaningful work for that day. He would have been paid about £2,500 for hip and knee operations.
The judge made no order as to costs except that the defendant paid the barrister assessors costs at £350 inclusive of VAT.
The judge’s comments on the expert’s cancellation fee reflects the judgement of Bingham J (as he then was) in Reynolds v Meston (unreported) 24th February 1986 – see also Butterworths Costs B283.