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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 >> XYZ v Schering Health Care: Oral Contraceptive Litigation [2004] EWHC 90026 (Costs) (31 March 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90026.html
Cite as: [2004] EWHC 90026 (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.9 of 2004
XYZ v Schering Health Care: Oral Contraceptive Litigation
31 March 2004
Mr Justice Cooke (Sitting with Assessors)
The claimants brought an unsuccessful legal aid group action concerning the third generation oral contraceptive pill. This litigation involved complex and technical issues and a large number of expert witnesses were called. The original trial length was estimated to be six months, although it actually lasted some three months. The claimants were represented by prominent leading counsel and three juniors.
On the legal aid costs assessment a Costs Judge had made a number of rulings in respect of leading counsel’s fees. First he disallowed various fees charged in respect of conferences with experts which had taken place pre-trial, but post delivery of the brief. Secondly, he reduced counsel’s brief fee from £250,000 to £195,500. Of that reduction £50,000 was on the basis that less prominent counsel was equally able to undertake the work and would have taken the brief for a lesser amount. In addition the Costs Judge had felt that the underlying hourly rate for leading counsel of £350 reflected that particular leading counsel’s pre-eminence in the field, and that £300 per hour would have been the correct figure to take in order to calculate the brief fee.
The appeal succeeded in part. The Judge held that the claimant’s leader had not been entitled to charge extra for the meeting with experts, or for the case management conference. The normal rule that work done after delivery of the brief fell to be calculated as part of the brief fee, as set out in Loveday v Renton (No.2) [1992] 3 All ER 184, remained the norm. Such competence should only be remunerated in exceptional circumstances where the whole nature of the dispute changed, and this was not one such exception.
The appeal succeeded in respect of the brief fee, the Judge holding that the Costs Judge had erred in discounting the brief by £50,000, by taking into account an hourly rate. The Judge held that although time spent on a case was a relevant factor, it was not appropriate to determine a brief fee by having regard to an hourly rate. The Judge held that the circumstances of the case under review were exceptional, and fell outside the scope of normal complex medical negligence litigation. Leading counsel had had to prepare very large amounts of material, and to undertake complex cross examinations which required highly specialised skills, and in those circumstances it could not be said that his brief fee was unreasonable.