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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 >> JM Ryan v Tretol Group Ltd & Ors [2002] EWHC 9023 (Costs) (10 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2002/9023.html Cite as: [2002] EWHC 9023 (Costs)

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J M Ryan v Tretol Group Limited & Others
10 July 2002
Mr Justice Wright (Sitting With Assessors)

Mr Howcroft (costs draftsman) appeared for the Claimant instructed by Field Fisher Waterhouse. Mr Phillips (costs draftsman) appeared for the Defendants instructed by Eversheds of Newcastle Upon Tyne.

The Claimant was a lagger. He had worked between 1961 and 1984 for 12 different companies during which time he had been exposed to asbestos dust. In the autumn of 1992 he was diagnosed as having thickened lungs as a result of past asbestos work. He promptly consulted the solicitors in Nottingham to whom all Nottingham laggers took their claims. They were conducted by Mr Phil Sugden who specialised in that work. He issued proceedings against 12 Defendants.

The original firm merged with another firm and Mr Sugden left. His case was then handled by another fee earner who appeared to lack the expertise for such cases. He became dissatisfied with the conduct of his case. His concerns included the lack of precise terms of retainer. He had been led to believe that an insurance policy had been taken out to cover legal costs. At an early stage it would have involved a premium of about £82. By December 1998 it had become at least £2,500. By the beginning of 1999 the case had only proceeded to a summons for directions at which the case was ordered to be set down for trial by 5 May 1992. At that stage (6 years after instructing the solicitors) the solicitors had not obtained accountancy evidence or up to date medical reports. Liability had not been admitted. Apparently witness statements had been obtained and were ready for exchange. Part of the claim related to the dissolution of his business and his claim that that was caused by his mental state following the diagnosis of asbestos related illness.

The Claimant obtained advice from Mr Ward of the Asbestos Disease Advisory Service. He was advised to consult Mr Rodney Nelson-Jones of Field Fisher Waterhouse (FFW) solicitors, in London EC3 who had specialised in asbestos claims for 20 years. He consulted the firm in February 1999. Mr Nelson-Jones sent the Claimant a client care letter and pursued the case swiftly. When he first took on the case liability had not been admitted. The former firm refused to hand over papers which presented various problems to FFW. The claim was settled on 20 November 2000 by accepting a payment into court. Mr Nelson-Jones stated that he would expect to conclude multi defendant asbestos disease claims of this nature within 2-3 years.

The costs of the previous solicitor were agreed prior to the detailed assessment in December 2001. FFW instructed Mr Howcroft who did not have access to the former solicitors’ files. The Costs Judge had very little information on which to form a view as to whether or not the Claimant had acted reasonably in changing solicitors to a London firm or that he had been ill served by the former solicitors. He took into account dissatisfaction by the Claimant in relation to costs information and a heightened expectation on the award of damages. He could detect no correspondence in which the Claimant criticised the former solicitors for slowness. He understood the delay might have been due to the Claimant furnishing details of loss of income. The Costs Judge concluded that it was not reasonable for the Claimant to have disinstructed the solicitors. He awarded FFW charging rates based on Nottingham rates. The rates for partner, assistant solicitor and trainee solicitor were reduced respectively from £240, £180 and £120 to £160, £120 and £90. This effectively reduced the costs by about one third or some £20,000. Permission to appeal was refused. Permission to appeal was granted by McCombe J on 15 February 2002.

At the appeal permission was granted to adduce the witness statements of Mr Nelson-Jones (with exhibits) and of the Claimant which had supported the application for permission to appeal. The Judge took into account the principles of Ladd v Marshall. The Defendants’ costs draftsman did not oppose the application. The statements put before the court material information which had not been placed before the Costs Judge.

The Judge invited Mr Howcroft to identify factors which were relevant to the 9 categories set out by Kennedy LJ at page 90 of the judgments in Truscott v Truscott and Wraith v Sheffield Forgemasters Ltd (1998 1 All ER 532). Mr Howcroft was able to support at least seven of these categories.

The Judge concluded that the Costs Judge had asked himself the correct question as to the test to be applied. However the Costs Judge did not have sufficient information on which to conclude that the Claimant had acted reasonably in changing solicitors to a London firm. The Defendants’ costs draftsman conceded that if it was reasonable for the Claimant to change solicitors, there was no limitation on where he could go.

The Judge concluded that the Costs Judge had misdirected himself when he considered that the Claimant could have gone to other local solicitors but not to London solicitors. At page 90B Kennedy LJ had stated that it was an inappropriate test to compare local rates with London rates.

The Judge emphasised that the appeal Court had much more information than had been available to the Costs Judge. He was satisfied from the fresh evidence that there were no other firms with sufficient expertise in Nottingham who could have taken on the case. He concluded that it was reasonable for the Claimant to have changed firms and to have instructed Mr Nelson-Jones who was a specialist practitioner with 20 years experience in asbestos disease claims.

The Judge awarded the Claimant his costs of the appeal. He remitted the detailed assessment to another Costs Judge limited to charging rates. He ordered the costs of the appeal to be assessed at that hearing.

The Claimants list of authorities included:

Solutia UK Ltd v Griffiths
Truscott v Truscott/ Wraith v Sheffield Forgemasters Ltd
William Paterson v Cape Darlington (Astill J, 15 June 2001, the case concerned FFW)
Carpenter v Mid-Kent Healthcare Trust Ltd (HHJ Marr-Johnson, 1 August 2001)