The Supreme Court Costs Office

No.10 of 2005

 Hesp v Willemse

 9 March 2005

 Mr Justice Calvert Smith (Sitting with Assessors)

The claimant was a skilled ornamental blacksmith and boat builder. His earnings were modest and irregular, principally because he was constructing a boat on which he spent some 8,000 hours.

The claimant was injured on 2 December 1995 when he was involved in a head-on collision with the defendant, a foreign national, who was driving in the opposite direction on the wrong side of the road. He suffered a closed head injury leaving post contusional syndrome together with soft tissue injury to his cervical spine, jarring of his right wrist, lacerations of his lower limb and chest bruising. He was not detained in hospital.

Proceedings were issued in November 1998. In October 1999 judgment was entered by consent on liability after the defendants had dropped an issue of 25% contributory negligence on the basis that it was not clear whether or not the claimant had been wearing a seat belt. The issues of liability and contributory negligence were resurrected 2 years later. The claimant solicitor had particular expertise in dealing with these types of brain injury cases.

At trial the Judge awarded the claimant £212,620 damages. The Court of Appeal reduced the future loss of earnings from £110,000 to £50,000. Damages were therefore reduced to £167,000.

The plaintiff’s claim was pitched at a level of some £500,000. The defendants throughout had maintained that this was a wholly unrealistic level. The defendant had made payments into court. An increased offer shortly before trial increased his offer to a final pre trial offer of £125,000.

The claimant served a bill of costs claiming some £231,450. The defendant raised the issue of proportionality and the Costs Judge decided that the claim for costs was disproportionate to the issues involved. It was therefore necessary for him to decide whether the instruction of Leading Counsel was reasonable and necessary. The fees of Leading Counsel in relation to the pre trial consultation and the brief fee and refreshers was in the order of £31,000 or about 15% of the bill. The Costs Judge took into account the amount of damages awarded at trial and as reduced on appeal and that junior counsel had written an opinion for the Legal Services Commission recommending that Leading Counsel be consulted. He disallowed certain fees which were the subject of the appeal, namely:

(1) The brief fee of £12,500.

(2) A brief fee for counsel who attended the last two days of the trial to assist Leading Counsel when the senior junior counsel already briefed was not available. The fee related to attending when the judgment was handed down.

(3) The fee of junior counsel not previously involved in the case who attended a case management conference when junior counsel originally retained was not available.

Leading counsel for the claimant and counsel for the defendant (who had appeared before the Costs Judge) appeared on the appeal.

It was common ground on the appeal that the Costs Judge was not referred by name to the judgment of Evans J in Juby v London Fire and Civil Defence Authority. Counsel for the defendant explained that the principles in that case had been brought to the attention of the Costs Judge. The Judge was satisfied that, while the extempore judgment did not identify the specific issues which had been presented to him under the general guidelines in the Juby case, he did have those points in mind when delivering his judgment. The Judge referred to the judgment of Lord Fraser in G v G cited by Brooke LJ in Tanfern Ltd v Cameron MacDonald and concluded that the Costs Judge had not exceeded the generous ambit within which a reasonable disagreement is possible. The Judge concluded that, on the facts, this was never going to be a substantial case. He accepted the submission by the defence counsel that the result was much closer to the defendant’s expectation than the expectation of the claimant. The Judge accepted the defendant’s submission that this was a case which could have been conducted by a senior junior and that, following his decision on proportionality, the Costs Judge was correct to disallow the fees of leading counsel, at item 1.

It emerged that the fee at item 2 was in fact a fee of £1,000 for leading counsel which he intended to share with junior counsel. The Judge agreed that a fee of £500 was reasonable for counsel to attend the handing down of the judgment. He was not prepared to restore the fee for junior counsel because there was no challenge to the fee allowed to leading counsel.

A minor adjustment was made on the third item. The fee of junior counsel was increased from £575 to £675 on the basis that he was entitled to slightly more preparation time. There must be discount because he had not been originally retained in the action.

The Judge awarded the costs of the appeal to the defendant which were summarily assessed. He made a Lockley order that these costs be set off against the claimant’s damages.