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St Helena Supreme Court Judgments
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Peters v Attorney General of St Helena (Costs) [2025] SHSC 525 (20 May 2025)
URL: http://www.bailii.org/sh/cases/SHSC/2025/2025_525.html
Cite as:
[2025] SHSC 525
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Case Number: SHSC 525/2020 |
IN THE SUPREME COURT OF ST HELENA
BEFORE :
Rhona Campbell
Acting Judge of the Supreme Court
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BETWEEN :
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MARIO PETERS (by his mother & litigation friend GILLIAN PETERS)
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Plaintiff
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- and -
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ATTORNEY GENERAL OF ST HELENA
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Defendant
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- and -
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SERGIO VILLATORO BRAN
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Party 20 Defendant
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____________________
____________________
HTML VERSION OF JUDGMENT IN RESPECT OF HEARING ON 8TH MAY 2025
____________________
Crown Copyright ©
- This decision is in response to a request for three declarations made by the Plaintiff by email of 14th November 2024. Those declarations relate to the costs regime that applies to the recovery of legal fees in this case. They are expanded upon below. An oral hearing took place by remote video facility connecting to the Supreme Court in St Helena before me on 8th May 2025. Prudence commends an understanding of the background and context that underpins the application.
Factual Context
- Mr Bran was employed as an orthopaedic surgeon at Jamestown General Hospital in 2015. He became the resident orthopaedic surgeon for St Helena in 2016, an employee of the St Helena Government, and was suspended in February 2021. Concerns were raised relating to incorrect diagnoses, inappropriate or poorly conducted operations; and improper rehabilitative treatment. On 22nd September 2023 he was sentenced having pleaded guilty to five offences contrary to s20 Offences Against the Person Act 1861 arising from his time in role.
- Mr Peters, who has cerebral palsy, was not a victim in respect of one of these criminal offences but is one of a number of patients who is aggrieved by the standard of care he received from Jamestown General Hospital. He had sought medical assistance after falling whilst in the care of the (then) Safeguarding Directorate. The Particulars of Claim in the current civil claim are dated 21st July 2020.
- At the hearing on 8th May 2025 the Defendant confirmed earlier indications that liability is not challenged and consented to judgment being entered against it. Issues remain as between the Defendant and the Part 20 Defendant Mr Bran. Quantum is not agreed.
Mr Peters' Legal Representation (a) Individually
- Mr Peters initially secured legal representation through the Public Solicitor's Office (PSO) in 2018. An expert report had been instructed on his behalf. The Plaintiff's counsel could thus imply, if not evidentially confirm, that an application for Legal Assistance Funding (LAF) had been made on Mr Peters' behalf at some stage. (Page 4 Heading 'Prior Authority' of the St Helena Government Legal Aid Policy October 2023 would appear to be the current applicable provision).
- Mr Peters' initial accident took place in August 2017. With proceedings issued in July 2020, and this interlocutory hearing in May 2025, the overall progress of Mr Peters' claim has lacked alacrity.
- Hugh James solicitors took over conduct of Mr Peters' case from the PSO on 21st March 2024 and I am informed that a replacement on the court record occurred on 22nd April 2024. They entered into a Conditional Fee Agreement (CFA) with the Plaintiff on 3rd June 2024. The contents of that CFA have not been disclosed to the court.
(b) Background Context
- The actions of Mr Bran have potentially affected a very large number of Saints. Hugh James solicitors inform the court that they are instructed by approximately 140 clients who anticipate issuing proceedings against the defendant as a result of Mr Bran's actions. Obtaining medical records on the island can be challenging with delay a consequence.
- The declared intention by the Government of St Helena on 22nd September 2023 to introduce a compensation scheme to deal with the former patients of Mr Bran that wish to claim for damages from medical negligence has yet to be introduced.
- Any costs decision in Mr Peters' case has potential ramifications for other future litigants in similar circumstances. The means by which such litigants can secure legal representation and the rates of fees applicable has a potential impact upon their access to justice. Such assessments need be seen in the very particular circumstances of St Helena, its small population, geographical location, low GDP, and access to legal services.
Case Law Development in respect of Conditional Fee Agreements in St Helena
- In 2014 the Supreme Court sitting in the case of Attorney General of St Helena v Dr N. Chapman (Chapman) clarified that the presumption that costs follow the event as applicable in England & Wales was not of application in St Helena. Parties in civil cases would bear their own costs regardless of outcome, in the absence of unreasonable behaviour, as defined therein. The financial means of the residents of St Helena was the justification that underpinned the principle. The fear of costs orders disproportionate to residents' means would have been an unjustifiable deterrent to citizens seeking fair redress through the courts.
- This principle was developed by the Chief Justice in the Supreme Court in Bakos & others v Attorney General of St Helena (511/2016) (Bakos). An exception to the Chapman rule was that Conditional Fee Agreements (CFA's) would be permitted in personal injury cases only, where experts needed to be instructed, and where the defendant was either the Attorney General or was protected by indemnity insurance. No success fees were permissible. Chief Justice Ekins stated,
"In reality the use of CFAs will be very limited. The Public Solicitor should almost always be the first port of call in cases such as these. A CFA should only subsequently become necessary if there is difficulty in funding through the LAF. If a litigant nevertheless chooses as a first option to instruct an offshore lawyer under a CFA then whether it is reasonable or not to have done so will be the subject of rigid scrutiny under the QOCS system."
The need to ensure access to justice for the residents of St Helena and the need to ensure equality of arms between parties underpinned the judgment.
- In Raymond Herne & others v Attorney General of St Helena (SHSC 531/2024) (Herne) a hearing took place on 4th July 2024. The judgment of the Divisional Court of the Supreme Court of St Helena is dated 19th July 2024.
- The underpinning principle in Chapman was restated. The exception in Bakos to permit CFA's was expanded and adapted.
i) It remained the case that CFA's are only to be permitted when the defendant is the Attorney-General or has the protection of indemnity insurance.
ii) Such CFA's were no longer limited to personal injury/medical negligence cases where expert reports were required but permitted in all civil cases in the courts in St Helena.
iii) It is only permissible to enter a CFA when Legal Assistance Funding had been refused after consideration of a properly formulated application
iv) A plaintiff entering into a CFA need not approach the Public Solicitor's Office first and could be represented by any lawyer practising in St Helena or the PSO (per paragraph 36).
v) It remained the case that no success fees can be charged under a CFA.
vi) CFAs should include a clause that only those fees that are approved on taxation as reasonable and proportionate are enforceable by a lawyer against his or her client under the agreement.
vii) The normal rate that counsel and solicitors should be paid when QOCS (Qualified One-Way Costs Shifting) applies and the public purse funds the payment of their fees is not to exceed that chargeable by those on AG's Civil Panel of Counsel in England & Wales or by the PSO on St Helena. The practical effect of this was stated to be that £150 per hour would be the maximum that a lawyer could normally recover under a CFA.
- For ease, pertinent extracts from the relevant case law are cited in the attached appendix to this judgement and not rehearsed in the text.
- For clarity, enquiry was made of all counsel at the hearing on 8th May 2025 to confirm whether applications could be made for Legal Assistance Funding (LAF) by any solicitor in practice on the island, not just the PSO. Both Plaintiff and Defendant confirmed that this was correct. The nature of the judgment in Herne plainly indicates that this is so. I have read the Legal Aid, Assistance & Services Ordinance 2017. It does not deal expressly with this proposition. It is certainly the case that "legal aid" is defined to be legal assistance provided by the PSO or an employee thereof; however an application to the Legal Assistance Fund is not tied to that definition.
- Sections 10 & 11 of the Legal Aid, Assistance & Services Ordinance 2017 read as follows:
Objects of the Fund
11. The objects of the Fund are:
(a) to promote and encourage the establishment of schemes or arrangements for the dissemination of information about the law and its administration; and
(b) to ensure (so far as is practicable) that legal advice and assistance is available to members of the public by whom it is sought.
Powers of Trustees
12. In pursuit of the objectives of the Fund, the Trustees may from time to time, in their absolute discretion, cause any money or property of the Fund to be laid out or applied:
(a) .. (b) .. (c)
(d) in any other manner in which the Trustees are satisfied that the objects of the Fund can be effectively advanced.
- I am content that it is open to a solicitor other than the PSO to apply to the Legal Assistance Fund for funding for a client to pursue litigation on St Helena. Any resultant funding that they received would be quite distinct from 'legal aid' (which is controlled by the Public Solicitor). It is also open to the trustees to make recommendations to the Financial Secretary if appropriate.
- In short summary the Herne ruling thus expands the cases where CFA's may be valid; removes the general presumption that litigants will first instruct the PSO; introduces a mandatory pre-condition for entry into a valid CFA that a properly formulated application for LAF has been unsuccessful; restricts the fees of lawyers recoverable from the public purse to £150 an hour; and requires that only the reasonable fees recoverable on taxation through the QOCS system can ever be enforced by a lawyer against his client under a CFA.
Interlocutory Hearings in the Current Case
- On 23rd October 2023 oral admissions of breach of duty were made in open court.
- On 11th July 2024 the Defendant sought an adjournment to clarify instructions and costs were reserved. Judgment against the Defendant was not entered. Reference was made to an imminent judgment in respect of legal costs. (Reserved judgment in the case of Herne is dated 19th July 2024.)
- At a hearing on 14th August 2024 (judgment reserved to 27th August 2024) one element of Acting Judge Cooke's decision was that the Defendant should pay the Plaintiff's cost in the sum of £859.90 from 11th July 2024. Implicit within that decision is, firstly, that this case falls out of the general 'no costs' rule in Chapman and, secondly, that the fee structure set out in the Herne case had been broadly applied to the case. (Costs were awarded on the basis of £157 per hour for counsel & solicitor.)
- The August 2024 decision of Acting Judge Cooke, in respect of the costs from 11th July 2024, is subject to an application for leave to appeal to the Court of Appeal of St Helena. One focus of the appeal grounds is the refusal of Acting Judge Cooke to enter judgment in August 2014. A second, pertinently here, is that the costs ruling in Herne has no proper application to Mr Peters' case, in part because it was wrongly decided. The capacity of the court to constitute itself as a Divisional Court in the Herne hearing is also the subject of challenge.
- Application was made by the Plaintiff on 12th March 2025 for Acting Judge Cook to recuse himself from the case in the light of a disclosed letter from the former Attorney General to the Chief Justice dated 12th June 2024 prior to the ruling in Herne. This is a letter that I have purposefully not read (despite its enclosure within the bundle). Acting Judge Cook recused himself on 25th April 2025 because of the perception of bias that could arise given that he had read the letter prior to making his rulings on costs.
- The appeal against Acting Judge Cooke's August 2024 decision has not been heard. By my understanding the application for leave has yet to be determined. Despite the impact such a decision would have on the matter before me, all parties wished for the hearing of 8th May 2025 to proceed, with a view to consolidating any resultant appeal before the Court of Appeal on all elements of costs concerning Mr Peters.
Application for Declarations
- As stated, this decision is in response to a request for three declarations made by the Plaintiff by email of 14th November 2024.
- Further requests within that email concerning disclosure of correspondence pertaining to the case of Herne & others v AG of St Helena and the court bundle used therein on 19th July 2024; together with the Defendant's fee information and a stay in earlier Directions had been resolved prior to my involvement and the hearing of 8th May 2025.
- The issues between the parties have evolved in the near six months since the application was made. By the date of hearing on 8th May 2025, whilst limited points were still outstanding from the email application, fresh matters had arisen in documentary exchange which were then developed in oral legal argument.
- The parties were unable to agree a List of Issues in Dispute.
- A composite outline of the matters upon which at least one party sought the court's guidance by declaration runs as follows:
(i) Is the conditional fee agreement which Hugh James solicitors have entered into with Mario Peters (by Gillian Peters) valid and enforceable? This issue to encompass whether the Plaintiff needed to have made a meaningful / properly formulated application to the Legal Assistance Fund refused prior to entering into an enforceable CFA.
(ii) Is Mario Peters (by Gillian Peters) entitled to take out an After the Event insurance policy?
(iii) Would the recoverable element of ATE insurance be recoverable from the Defendants in the event that Mr Peters is awarded damages?
(iv) Guidance is requested upon lawyers' hourly rates that would be recoverable inter partes by the Plaintiff's representatives against the Defendant in the context of a valid CFA. This issue to encompass the propriety of setting a normal hourly rate of £150; consideration of whether Mr Peters' case was properly described as exceptional; who should decide this issue and when; determination of whether Government rates or the plaintiff's solicitors' rates should apply in exceptional cases.
- A distillation of the core issues that are contentious between the parties appears to this to court to be:
(a) What, if any, level of engagement with public funding on St Helena is needed before a Plaintiff can enter a CFA?
(b) Should there be a regime in place to cap lawyers' fees recoverable under such a CFA?
(c) If so, what level/structure of fee cap is appropriate to deal with cases justly and at proportionate cost bearing in mind the practical challenges of location for residents of St Helena in securing access to legal representation?
- This court cannot deal comprehensively with all of these substantive issues. There are several reasons why.
◦ Firstly. this is a court of first instance and is bound by authority where these matters have been resolved previously. The case of Herne decided by Chief Justice Jones and Acting Judge Cooke is directly concerned with the issues. By the application of Herne in the decision of Acting Judge Cooke from July/August 2024 the possibility of appeal in relation to them is outstanding.
◦ Further, whilst some of these matters are issues of principle, others will be underpinned by findings of fact. To the extent that any adaptation of English law be argued, I am live to paragraph 19 of Lord Briggs' judgment in Attorney General of St Helena v AB and others [2020] UKPC 1 and the benefits of evidential input where judicial notice of local conditions is not available to the tribunal of fact.
Rulings arising from the Hearing of 8th May 2025
- I am bound by authority. The judgment of Lord Neuberger in Willers v Joyce and another (No2) [2016] UKSC 44 contains the uncontroversial proposition that:
"So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, para 59. I would have thought that circuit judges should adopt much the same approach to decisions of other circuit judges."
- Whether the case of Herne was a decision of the Divisional Court or the Supreme Court of St Helena, it remains an authority that I should follow absent a powerful reason to proceed otherwise.
- I approach each area upon which a declaration was sought as follows.
(i) Is the conditional fee agreement which Hugh James solicitors have entered into with Mario Peters (by Gillian Peters) valid and enforceable?
Is Mr Peters' case an exception to Herne?
- Despite the Attorney General's earlier stance, at the hearing on 8th May 2025 counsel for the Defendant conceded that Mr Peters' case was an exceptional one that fell outwith the prescriptive requirements laid down in the case of Herne. The Defendant conceded that his CFA was not rendered unenforceable by any failure to have had a LAF application refused.
- Counsel for the Plaintiff did not endorse the description of the case as exceptional and sought guidance upon the definition of such a term. The court noted that it could only be in Mr Peters' best interests for his matter to be deemed to exceptionally fall outside Herne criteria and concluded that it would not be just to stand in the way of such a concession.
- Understandably, the full factual chronology of Mr Peters' interaction with the LAF was not before the court. It was not clear that he would fulfil the Herne precondition criteria. He had however instructed the PSO for a number of years. An expert report had been secured on his behalf. His case did not appear to have progressed smoothly or at an expected pace. His CFA had been entered into prior to publication of the judgment in Herne. The overlap timings of hearings in the Herne and Peters cases meant that out of the ordinary and complex issues on public funding were raised. Counsel indicated that the scope of his underlying claim was unlikely to reach £1 million, but nonetheless there were complexities introduced from his existing health conditions at the time of the accident.
- The court is content that a close reading of Bakos & Herne legally justifies the conclusion that exceptions to the general rules outlined therein may apply. The court agrees that on these facts Mr Peters' case can rightly be categorised as 'exceptional'.
- Whether a case, exceptionally, need not comply with the Herne precondition criteria is a matter to be decided on individual facts. The absence of submissions on general principles makes it inappropriate for general principles to be set out here.
Is there a powerful reason to reject the concept of a LAF precondition in Herne?
- This court is content that it is bound by the authority of Herne. It does not find that there is a powerful reason to conclude otherwise. As a matter of general principle therefore it is necessary for any potential Plaintiff before the courts in St Helena to
apply, either through the Public Solicitors' Office or through a lawyer practising on St Helena to make a meaningful and properly formulated application for Legal Assistance Funding, which is then refused, before they may enter into an enforceable Conditional Fee Agreement (CFA). This Herne precondition criteria does not restrict a Plaintiff to instructing the PSO.
- This court reaches its conclusion as there must by necessity be an individual approach to the mechanics of litigation funding in St Helena. The core system of funding on St Helena does not mirror England & Wales. The existence of the Public Solicitor's Office and the availability of the Legal Assistance Fund are examples of the differences. Legal aid for civil litigation by comparison is severely restricted in England & Wales. The systems are not comparable. The long established default principle from Chapman that costs should not follow the event is another contextual difference between the two jurisdictions.
- It is not controversial to state that St Helena residents are statistically less affluent that those in the UK. The St Helena GDP per capita figure of £8,850 in 2021/22 was stated in Herne at para. 14. The UK comparison was £33,497.
- In a society where the economy is restricted it is in the general public interest for litigation to be inexpensive, subject of course to ensuring access to competent representation and equality of arms. Expensive litigation risks deterring righteous litigants from engaging in the court process. The insistence that a litigant apply unsuccessfully for LAF before a CFA can be entered into encourages the maintenance of the Chapman principle of no fee litigation. Where public funding is granted an unsuccessful party will not standardly be liable for an opponents' costs. Further the supervisory role of the Trustees of the LAF is likely to temper excessive fee inflation.
- The court has been taken to the St Helena budgets for the Legal Assistance Funding (£35,000 in 2024/25). Applications for extra funding can be made to the Financial Secretary. Whether resources are such that funding through LAF cannot be sufficient to deal adequately with the large number of potential plaintiffs in claims against Mr Bran is a policy issue. It is not one that affects this decision of the court. It may be that by necessity CFA's become more frequent due to an increased refusal to fund by the Trustees. It is certainly not a reason for this court to decide that the Herne case was wrongly decided by the introduction of the Herne precondition criteria.
- I have been directed to the May 2023 report of HHJ Brian Barker CBE KC on the Public Solicitor's Office. The express right stated in Herne for a Plaintiff to instruct any solicitor practising on island for the purpose of making an LAF application should address any concern stemming therefrom.
- This court finds that there is no powerful reason to reject the authority of Herne on this issue.
48. The court declares that any failure of Mario Peters to have made, and then had refused, a meaningful and properly formulated application for Legal Assistance Funding, does not affect the validity and enforceability of the Conditional Fee
Agreement which Hugh James solicitors have entered into with him (by his mother Gillian Peters).
- The court records that it has not seen the terms of the relevant Conditional Fee Agreement. Other issues could arise which may impact upon its enforceability. All are reminded that by the terms of the judgment in Herne no success fees may be included in a CFA and all should contain a clause that only those fees that are approved on taxation as reasonable and proportionate are enforceable by lawyer against client under the agreement.
(ii) Is Mario Peters (by Gillian Peters) entitled to take out an After the Event insurance policy?
and
(iii) Would the recoverable element of ATE insurance be recoverable from the
Defendants in the event that Mr Peters is awarded damages?
- There is no dispute that Mr Peters is entitled to take out After The Event insurance in respect of the cost of expert reports that pertain to the outstanding issues in the case. The Defendant concedes this. Application of the QOCS system to a valid CFA renders ATE beyond this scope unnecessary. The Defendant also accepts that the Plaintiff would be entitled to recover the ATE insurance premium paid subject to a standard assessment as to whether the amount paid was proportionately and reasonably incurred.
- The court declares that in the event that the Defendant is ordered to pay the Plaintiff's claim costs, the Plaintiff is entitled in principle to recover the element of any ATE insurance premium which relates to insurance against the risk of incurring a liability to pay for expert report(s) pertaining to liability or causation in respect of clinical negligence (subject to assessment as to reasonableness & proportionality conducted with sight of the insurer's risk assessment).
- No detailed analysis of the costs estimates provided by the Plaintiff's experts was undertaken nor were they the subject of submissions at the hearing. The Plaintiff's updated estimated costs schedule as at 24.01.25 amounted to £867,381.94, of which £165,605.57 was allocated to expert reports. It is important to note that there is no implicit endorsement whatsoever of these figures or the approach contained within those fee quotes. A prima facie assessment indicates that they are ambitious. Experienced & skilful experts in the field can often undertake assessments remotely by video hearing and this should be fully considered. The suggestion that business class flights to St Helena are justifiable is bold. The proportionality of any expert costs to any eventual damages award will always be relevant. Any ATE premium incurred should be calibrated with such matters in mind.
(v) Guidance upon lawyers' hourly rates that would be recoverable inter partes by a successful Plaintiff's representatives against the Defendant in the context of a valid CFA. This issue to encompass the propriety of setting a normal hourly rate of £150; consideration of whether Mr Peters' case was properly described as exceptional; who should decide this issue and when; determination of whether Government rates or the plaintiff's solicitors' rates should apply in exceptional circumstances.
Is there a powerful reason to reject a normal maximum Hourly Rate of £150?
- The court repeats that it need follow authority. This court finds that there is no powerful reason to reject the authority of Herne on this issue.
- Herne imposes of a hourly rate of £150 as a norm for the recoverable costs of solicitors or counsel where Qualified One Way Cost Shifting applies and the burden of paying those fees will fall on the public purse.
- This court has already noted the good sense of a tailored structure for the very specific
litigation funding structures in St Helena; and the prudence and propriety of maintaining a low cost jurisdiction. There is further wisdom in ensuring a predictability with regard to the costs rates that are likely to be awarded at the conclusion of a hearing. To proceed in a vacuum of fee rate guidance is unfair on lawyers who would be unable to predict until the conclusion of a case what rates a costs assessment would approve. Further, the experience in England & Wales of the escalation of fee rates in CFA's was what necessitated the introduction of QOCS following the Jackson Review. The court notes that the publication by HMCTS of Solicitors Guideline Hourly rates (that vary by geographical location) and the standard use of costs management hearings in England & Wales (enshrined within the Civil Procedure Rules) supports the sense in advance prediction of costs generally.
- This court endorses in this particular case the setting of guideline fee rates to be recovered by a successful Plaintiff's lawyers under QOCS.
- No costs budgeting exercise has taken place. The court acknowledges when costs budgeting is standardly considered in England & Wales, by CPR 3.15 (8), it is not the role of the court to fix or approve hourly rates but rather to fix an overall total budget for each phase of the case. That budget is then managed individually by the parties. This approach however is a misfit for the current situation and stage of this particular case. In respect of the procedural arguments in this case the management of costs by application of an hourly rate is plainly appropriate.
- Herne does not envisage a cost budgeting approach.
- This court agrees that fee rates imposed need to be set with regard to the local context and economy of St Helena. Fees should not exceed what the local economy can sensibly tolerate for goods and services. The balance is to ensure access to justice through availability of suitably qualified lawyers at those rates. The conclusion comes from a straightforward application of the overriding objective in the CPR 1.1 that cases are dealt with justly and at proportionate cost. The identity of a Defendant is not relevant when reaching this simple conclusion.
- Lawyers from many jurisdictions can easily practice within St Helena. Mr Toulmin van Sittert, appearing for the third party, helpfully informed the court that similarity in procedural rules makes South African lawyers, particularly from the Western Cape, well placed to practice in the St Helena jurisdiction. Judicial notice can be taken of the exchange rate advantages in procuring services paid in Rand rather than by Sterling, particulary where a flight time for physical attendance is comparatively short. If off island legal services are required it need not come from the UK. If the UK is the source then remote working practices and a diaspora of talent outside London tempers the rates that need be incurred.
- This court, whilst endorsing the introduction of an economical fee structure guideline, steps back from commentary as to what the level of those fees should be. The judges in Herne were local to the island. Experience of the availability of lawyers, the extent to which lists have been prepared of solicitors off island prepared to work on St Helena, inhibitions from and/or attractions to practising on St Helena are all matters not in evidence before me. They potentially impact upon whether the rate set impinges upon access to justice or not.
- The application for leave to appeal in respect of Acting Judge Cooke's decision of 27th August 2024 in this case deals specifically with the validity of his earlier decision imposing a costs regime and a normal maximum hourly rate of £150. It is outstanding.
- This court concludes that it does not have a powerful reason to interfere with the decision in Herne on this point.
Is Mr Peters' case exceptional for costs purposes?
- It was conceded by counsel for the Defendant, following on from paragraph 36 above, that, the matter was not suitable for LAF, and that the £150 per hour cap introduced in Herne should not apply to the plaintiff's legal costs.
- The court accepted that as a matter of law this was permissible. Herne identified the £150 rate as the norm and so by implication cases must arise which are out of the norm.
- For the reasons outlined in paragraph 38 this court accepts that this matter falls to be an exception to the norm for costs purposes and the £150 hourly rate does not apply.
Who should resolve whether a case is exceptional and when?
- The decision of whether a case falls to be described as exceptional or out of the norm for costs purposes will ultimately rest with the court responsible for assessment of reasonable costs under the QOCS regime.
- It is plainly wrong in principle that such an adjudication should lie in the hands of another litigant in the matter. Where a concession is made by a Defendant (who has admitted liability) that a case is out of the norm for costs, and that decision is to the advantage of the Plaintiff, and there is a proper factual basis for such a factual assessment then a court is likely to make such a finding. Neither a Defendant's nor a Plaintiff's view as to the exceptional nature of the case will be determinative.
- Each case will turn on its own facts. The mere fact that a case concerns clinical negligence will not render it exceptional. The value of the claim, the number of experts involved, the presence of unusual factual or legal complexities are amongst the factors that will be taken into account.
- Any lawyer entering into a CFA will know the normal rate of costs to be applied. It would be open for arguments to be raised as to the exceptional nature of the case for costs purposes on notice at any interlocutory hearing directed by the court hearing the case.
Should Government rates or the Plaintiff's solicitors' rates apply in exceptional cases?
- The hourly rates the plaintiff can anticipate recovering for his lawyers under a QOCS assessment have a limit. I remind myself once again of the overriding objective. A Plaintiff may be free to chose to secure a platinum service but he cannot be entitled to recover costs at such a level, when he will be adequately served at a lower price point.
- As observed, this is not a costs budgeting exercise. All parties have stressed throughout the papers the importance of securing some certainty as to the potential for costs recovery in the case. In my judgement it is just and appropriate to set recoverable hourly rates here for this case. Counsel for the defendant encourages this approach, whilst counsel for the plaintiff resists. My discretion as to awards of costs under s20 of the Civil Procedure Ordinance 1968 are extremely wide.
- The hourly rates that I set as appropriate apply to this case alone. Conceptual concerns regarding general evidence on access to justice and equality of arms which are pertinent when considering a blanket £150 rate do not arise here. This is a specific case where the rates of all the other lawyers in the case have been disclosed. The court can thus decide, on these specific facts, what level of hourly rate is reasonable and proportionate in the knowledge of the rates that other competent, specialist litigators are prepared to work in a St Helena case of this nature. This is not to suggest that one party's rates are set by what their opponents choose. What it does is provide informative and relevant context.
- Engaging lawyers in a specialist area of law does not necessitate incurring high fee levels. The speciality and complexity of some areas of law are remunerated within legal aid fee structures. Competence and professionalism are not the exclusive preserve of those charging large brief fees or high hourly rates. Whilst the pursuit of an increased profit margin is a valid commercial decision it does not render others for whom elements of public service temper their earning ambitions as being any the less competent.
- All British citizens do not incur legal costs at the same level. There are geographical and jurisdictional differences across the Kingdom. Practical and effective access to justice can be provided without the need for premium rates. It is correct and appropriate to consider an entitlement to costs within the context of the local economy. The case of AG of St Helena v AB & others (above) does not contradict this principle. It deals with the application of universal principles of damages recovery not the introduction of a universal entitlement to recover legal costs at unfettered commercial rates.
- The appropriate recoverable hourly rate for counsel in this specific matter shall reflect the new, increased AG's panel rates from 1st April 2025 for the most experienced level of KC at £270 and a Regional level A junior counsel at £137.50.
- The court regards these fees as reasonable and proportionate to the issues and complexity of this case. The court finds that these fees are at a rate where competent and appropriate counsel can be secured and retained.
- It is important to remember that this is a case where liability was admitted orally prior to the involvement of Hugh James solicitors. Risk factors were consequently all but erased. I do not regard it to be necessary for a pound for pound match to achieve an equality of arms. A comparable range will suffice.
- Leading counsel for the Defendant orally stated that his Government hourly rate would be £225 but that he was off panel. It was stated by his solicitors to be £300 an hour. His junior's rate was £90 per hour rising to £112.50.
- The Plaintiff solicitors' hourly rates that may be recovered as reasonable and proportionate inter partes in this specific case are £241.50 for a partner; £212.75 for a principle associate; £189.75 for an associate solicitor/legal executive; £172.50 for a solicitor; and £115 for a trainee/paralegal.
- Weightmans, the defendant's external solicitors' rates, which were reached by means of a competitive tendering process are set out in their letter of 6th January 2025. They exceed rates applicable to the PSO on island. They exceed the rates charged by the third party solicitors. They are less than the Solicitors Hourly Guideline rates summarised in the UK by HMCTS.
- The solicitor rates entered in the costs estimate for Browne Jacobson solicitors representing Mr Bran the Part 20 Defendant are £172 at Grade 1 and £157 at Grade 2.
- This court takes the rates accepted by Weightmans as a clear indication of the figures at which a competent and appropriate solicitors firm can be secured and retained in a case of this nature. An uplift of 15% reflects the absence of bulk contracting from a government provider. That 15% uplift is already applied in the figures at paragraph 80. The de minimis costs risk in this particular case is dealt with above. No inequality of arms arises.
- It is correct and appropriate to consider a reasonable and proportionate entitlement to costs within the context of the local economy, the availability of external providers and the complexity of the issues in a case that falls outside the norm.
- This ruling deals with the appropriate hourly rates to be applied to this specific case alone. It does not address the reasonableness of the number of hours accrued. It is not hyperbole for the defendant's counsel to describe the Plaintiff's costs estimate of £867,381.94 as eye watering. All must bear in mind the requirements of the overriding objective. I commend reflection on whether a solicitor's physical attendance at a hearing is necessary when junior counsel is instructed. Whilst all are welcome at any court hearing for their own interest, education or development, this is a different question to whether the costs of their attendance could be recoverable. The possibility of the attendance of three solicitors is mooted in the papers. I commend reflection on whether equality of arms at a hearing refers to those actively engaged in the dispute. I commend reflection upon whether the engagement of four counsel to draft a skeleton argument is reasonable and proportionate.
St Helena Equality & Human Rights Commission ("the Commission")
- Application to intervene was received in writing by the court on 6th May 2025 on behalf of the Commission. One Commissioner Catherine Turner attended the hearing in person and she was ably represented by counsel Ms Hart in concise and insightful submissions.
- This court agrees that evidence dealing with the practical experience of access to justice on St Helena would be of assistance to any court resolving whether a blanket rate of recoverable legal fees should be imposed on the island and if so what that level of fee should be.
- Ms Hart outlined the Commission's arguments to challenge the propriety of any government input in setting the rates of Plaintiff's fees; and to challenge the imposition of any costs cap as being incompatible with access to justice on St Helena as enshrined within the Constitution.
- The court in Herne was concerned with these decisions as matters of principle. Additionally the outstanding application for leave to appeal in respect of Acting Judge Cooke's costs decision was en route to being considered directly by the St Helena Court of Appeal.
- By contrast, this court, despite expansive argument and paperwork, had the scope to
decide little, bound as it is by authority.
- The delay inevitable from allowing an intervention in this case at this stage was not desirable. A court deciding the broad principled issues of access to justice was the appropriate venue for an invention application. There was far greater value from the Commission's limited resources in placing evidence and arguments before the Court of Appeal where the Commission's real issue of concern was open for consideration.
- This court refuses the application to intervene in respect of this aspect of the Peters case but it commends the intervention as appropriate as part of the outstanding appeal.
Further Progress
(i) The Plaintiff shall confirm by 4pm 7th June 2025 whether he seeks to pursue his application for leave to appeal against the decision of Acting Judge Cooke dated August 2024 to the St Helena Court of Appeal. This decision to be communicated to all parties and the Commission.
(ii) All parties are directed to confirm within the same timescale as to whether this decision will be subject of an application for leave to appeal. The advantages of a unified hearing on both matters are self-apparent. Again such decision to be communicated to the Commission.
(iii) If appeal against either decision is to be pursued then the parties are directed to propose agreed directions for the progress of that appeal by 4pm 28th June 2025. Such directions to encompass a time estimate for the appeal hearing, a time frame for the exchange of any further skeleton arguments (if necessary), and proposals for the submission of any further evidence on the issue of access to legal representation on the island.
(iv) If appeal against either decision is to be pursued then the Commission is directed to indicate in writing whether it renews the application to intervene before the Court of Appeal by 4pm on 28th June 2025 with a proposed timetable for the submission of evidence and skeleton arguments. In the interests of transparency such documentation need detail any potential conflict of interest that applies to Catherine Turner. It is understood that her daughter in law was a complainant in the criminal case involving Mr Bran.
(v) If no appeal is to be pursued then the parties are directed to propose agreed directions for the progress of substantive matter by 4pm 28th June 2025. Such directions to record the entry of judgment against the Defendant; consent to the lifting of the current stay; and a revisiting and updating of Acting Judge Cooke's Directions of 14th August 2024.
Rhona Campbell
Acting Judge of the Supreme Court 20th May 2025
Handed down remotely by email distribution to parties & released to BAILLI on 29th May 2025
____________________
Annex A to the Judgment in
MARIO PETERS (by his mother & litigation friend GILLIAN PETERS) and
ATTORNEY GENERAL OF ST HELENA
and
SERGIO VILLATORO BRAN
re Hearing on 8th May 2025
THE CONSTITUTION OF ST HELENA, ASCENSION AND TRISTAN DA CUNHA
10.— Provisions to secure a fair trial
..(10) For the determination of the existence or extent of his or her civil rights and obligations, every person shall have the right to a fair hearing within a reasonable time before an
independent and impartial court, tribunal or other authority established by law
ENGLISH LAW (APPLICATION) ORDINANCE 2005
2. In this Ordinance, "Adopted English Law" means:
(a) the common law of England, including the rules of equity; and
(b) the Acts of Parliament which are in force in England at the time of commencement of this
Ordinance.
Application of Adopted English Law to St Helena
3. (1) Subject to subsection (2) and other provisions of this Ordinance, the Adopted English Law applies in St Helena.
(2) The Adopted English Law applies to St Helena only in so far as it is applicable and suitable to local circumstances, and subject to such modifications, adaptations, qualifications and
exceptions as local circumstances render necessary.
CIVIL PROCEDURE ORDINANCE, 1968 …
Costs
20. (1) Subject to any prescribed conditions and limitations, and to any law in force, the costs of and incidental to all causes, matters and issues are in the discretion of the court and the court has full power to–
(a) decide by whom and out of what property and to what extent the costs are to be paid; and
(b) give all necessary directions for that purpose aforesaid
In Attorney General v Chapman SHSC 1/2014 dated 14th May 2014 ('Chapman') the former Chief Justice Charles Ekins In considering the general principle in England & Wales that costs should follow the event stated:
"7. I have given careful thought as to whether a similar approach is appropriate to St Helena. I am clear that it is not. St Helena is very different to England and Wales in many respects, not least in terms of the affluence of St Helena's residents. Even in England and Wales aspiring litigants who do not qualify for legal aid and who cannot find a solicitor to undertake their case on a contingency fee basis are often deterred from seeking redress, however good their cases, through fear of ruin should the case in fact fail, and they be ordered to pay costs. The theoretical principle of access to justice for all is thus in reality often illusory. Were this approach to be adopted on St Helena, then this illusion would be exacerbated many times over and the fear of costs might well effectively deny to all but a very small minority of residents of St Helena the undeniably desirable right of access to justice for all.
8. For the future, therefore, Courts should be loathe to make orders for costs against the unsuccessful party in civil litigation where the issue of costs might otherwise arise. Costs orders should only be made where one or other party has acted in a patently unreasonable fashion either in pursuing a wholly unreasonable claim or in maintaining an unsupportable defence. An order for costs should also be considered where one party has refused an offer made without prejudice save as to costs and subsequently recovers less than the offer made, or declines to accept a payment into court in circumstances where the award subsequently is less than the amount paid in. Even in these circumstances, however, each case will turn upon its own facts."
In paragraph 9 the Chief Justice referred to
"….. the general undesirability that a vast swathe of the population of St Helena should feel deterred from seeking proper redress through a fear of costs.""
"10. This approach should not be taken as set in stone for all time. If as hoped, the advent of the airport sees the St Helena economy develop rapidly and promotes the arrival of commercial lawyers on St Helena then no doubt a change will become necessary."
Bakos and others v Attorney General SHSC 511/2016, 551/2015 & 524/2016 decided on 28 September 2016 ('Bakos').
Chief Justice Charles Ekins revisited the issue and concluded:
"12. In the circumstances, I am satisfied that the QOCS system is the system by which the Courts should be guided in any claim for personal injury where the instruction of an expert or experts is necessary for the pursuit of a claim and where either the defendant is protected by indemnity insurance or where the Attorney General is the defendant to the proceedings. As Mr Willems points out the QOCS system has safeguards against the pursuit of fraudulent or frivolous claims or the continued pursuit of a claim in the face of an offer which is reasonable. Furthermore, the Courts will be vigilant to ensure that any costs incurred are reasonable and in determining what is reasonable the Courts will consider both whether expert evidence is in fact necessary and whether adequate expertise could have been obtained more cheaply given the nature and seriousness of the claim.
13. I consider next the question of CFAs and whether they have been imported into St Helenian law by virtue of Section 58 of the Courts and Legal Services Act 1990. I have found this question more difficult. The 1990 Act permitted, inter alia, a success fee which have since been abolished under legislation which post-dates 1st January 2006 and which has not therefore been incorporated into St Helenian law. Success fees were abolished for good reason and would not be appropriate in any event to local circumstances on St Helena. However, it seems to me that there are circumstances, albeit very limited, in which CFAs, absent any provision for a success fee, could be both suitable and applicable to St Helena. Those circumstances would arise where a litigant had a reasonable claim but where for example the LAF was unwilling or unable to provide the necessary funding to pursue the claim. In those circumstances the Public Solicitor would be of limited assistance unless the litigant had sufficient funds to pay the costs up front. The litigant in those circumstances would be able nevertheless to pursue the claim under a CFA.
14. In the circumstances I am satisfied that CFAs are suitable and applicable to St Helena but only to a very limited extent. The English Law Application Ordinance provides that the English law will apply where suitable and applicable to local circumstances "subject to such modifications, adaptations, qualifications and exceptions as local circumstances render necessary." A CFA, as introduced by the 1990 Act is, I am satisfied, suitable and applicable to St Helena but modified and adapted in the following ways: that it makes no provision for a success fee and is limited to personal injury cases where the instruction of an expert or experts is necessary for the pursuit of the claim and where the defendant is either protected by indemnity insurance or where the Attorney General is the Defendant to the proceedings.
15. In reality the use of CFAs will be very limited. The Public Solicitor should almost always be the first port of call in cases such as these. A CFA should only subsequently become necessary if there is difficulty in funding through the LAF. If a litigant nevertheless chooses as a first option to instruct an offshore lawyer under a CFA then whether it is reasonable or not to have done so will be the subject of rigid scrutiny under the QOCS system."
Raymond Herne & others v Attorney General SHSC 531/2024 & 507/2024 & 510/2024 & 512/2024 dated 19th July 2024 '(Herne')
" 35. Having regard to Willers v Joyce we consider that access to CFAs solely limited to personal injury or medical negligence claims where expert reports are required runs contrary to the principles in Unison and cannot be sustained.
36. We also agree that it is no longer necessary that the first port of call for St Helena residents seeking to instruct a lawyer should always be the Public Solicitor. There are lawyers other than the Public Solicitor now practising on St Helena and the ability to select a lawyer of choice without restriction is also justified by the principle of access to justice and legal representation. Circumstances that existed at the time of Bakos, namely that access to lawyers practising in St Helena was almost always through the PSO, have changed.
37. The Chief Justice in Bakos had in mind that the PSO provides low, or no, cost legal advice to St Helena and that off island lawyers would by their nature be more expensive to the public purse when he said: 'In reality the use of CFAs will be very limited. The Public Solicitor should almost always be the first port of call in cases such as these. A CFA should only subsequently become necessary if there is difficulty in funding through the LAF. If a litigant nevertheless chooses as a first option to instruct an offshore lawyer under a CFA then whether it is reasonable or not to have done so will be the subject of rigid scrutiny under the QOCS system.'
38. The principle that the ability to select lawyers should not be at the expense of or detrimental to the public purse is an important one so long as access to lawyers of sufficient standing and equality of arms can be maintained. St Helena has never been a place where litigation is expensive and it is very much in the interests of St Helenians, as well as the public purse, that litigation remain affordable to all those involved, Plaintiffs and Defendants alike.
39. The circumstances that brought about the authorisation of CFAs in England, namely removing personal injury claims from the scope of legal aid, do not apply on St Helena. It is the case that public funding can be granted and we agree with the view of Chief Justice Ekins that for a CFA to be available with the benefit of QOCS, a) either the Government must be the defendant or the defendant must have indemnity insurance; and b) a meaningful and properly formulated application to the Legal Assistance Fund should first be made and have been refused………….
45. The judgment in Bakos continues to apply as an exception to that general rule but with the following modifications.
46. In summary, CFAs are permitted to be entered into by any plaintiff instructing the PSO or any lawyer practising in St Helena and are enforceable in all civil cases or proceedings before the courts of St Helena where the defendant is the Attorney General or is protected by indemnity insurance but only when LAF funding is not available to that litigant because it had been refused following a properly formulated application. In those circumstances, the plaintiff will retain the benefit of QOCS - if they are successful in the litigation (as defined under the CFA) then their legal costs will be payable by the unsuccessful party (the defendant) but it they are unsuccessful then they will have not to have pay costs of the successful party or their own lawyer (subject to any condition in the contract that requires a contribution towards the costs of their own lawyer) - unless they or their representatives have behaved unreasonably.
47. Mr Hitchens agreed with the proposition that only if funding through the Legal Assistance Fund was not available, because it had been refused following a meaningful application having been made, would a CFA then become available and enforceable in respect of a Plaintiff who would also retain the benefit of QOCS.
48. We also agree with Mr Hitchens that CFAs should include a clause that only those fees that are approved on taxation as reasonable and proportionate are enforceable by lawyer against client under the agreement………
50. Fees payable to lawyers from public funds (whether paid in respect of their own lawyers or an opposing party's lawyers) should always be affordable and reasonable (proportionate to the local economy). Given the average salary and GDP per capita of the average St Helenian, the relatively low cost of living and overheads on island and the pressure on the public finances, St Helena must remain a low costs jurisdiction when it comes to litigation.
51. St Helena benefits from enrolment rules that allow those from jurisdictions other than those in the UK to practice on the island. There are many common law jurisdictions where the cost of practising is significantly lower than in the UK.
52. Choice of access to a lawyer at public expense does not translate to access to a lawyer at any cost. Costs of practising on St Helena are low. Rents are low, staffing costs are low and there are no business rates. St Helena rates of pay to lawyers should always be commensurate with local conditions. The maximum fee the PSO charges any business or non-St Helenian client is £150 per hour and for St Helenians it is £50 per hour for those earning over £30,000 p.a. For those on the median wage there are no costs associated with instructing the PSO.
53. The fees for counsel on London panel 'C' rates of the Attorney General's Panel of Civil Counsel are £80 per hour but these have not increased since 1997. Had they risen in line with the consumer price index they would now be £152.
54. To ensure access to lawyers at a reasonable cost, and having regard to the maximum costs that can be paid to the PSO, it seems to us that hourly rates for solicitors or counsel not exceeding £150 per hour should be the norm where it is the public purse that will, or may, foot the bill. Such a rate is still higher than counsel instructed by the UK government (even the A panel) and are likely to be higher than rates paid to many UK lawyers under the legal aid scheme. Such rates will ensure that access to lawyers of sufficient standing and expertise will be maintained. The precise rates and fees that are judged to be reasonable and proportionate will have to be decided on a case by case basis on taxation."