The Claimant, a highly qualified lawyer in several foreign jurisdictions, only acquired a practising certificate in this country in 1998. He was a successful commercial lawyer practising as a sole practitioner in the City of London, but in his ‘spare time’ was working on a revision of the Merchant Shipping Acts. In that connection he had accumulated a substantial and very distinctive personal library of books which he kept in his flat. When that flat had to be rewired the landlords asked him to put the books into a outbuilding, from which unfortunately they were taken and destroyed. He brought proceedings, acting in person throughout, claiming damages against those responsible, and succeeded to the extent of andpound;96,000, together with costs. Those costs were assessed by a Deputy Costs Judge over a four day period, spread over several months, and a number of difficult points arose, of which the Claimant wished to bring 25 on appeal. He was allowed to bring forward only five, and of these only three justify mention in this summary. The first is the hourly rate to be allowed to him for work done in the period prior to that in which he got an English practising certificate. The Deputy Costs Judge had allowed him andpound;90 per hour, being andpound;10 per hour less than two thirds of the hourly rate claimed. The Judge upheld the Deputy Costs Judge’s view that if the Defendant had chosen to instruct solicitors he would not have gone to a City firm for this sort of case, which was conducted in Clerkenwell County Court, but rather would have gone to a medium sized Holborn or West End firm. Nevertheless the Judge held that the Claimant was entitled to the full two thirds of what a solicitor would have charged, and there was no warrant for any reduction such as made by the Deputy Costs Judge.
The next point concerned time spent by the Claimant in preparing a schedule of lost books for the benefit of loss adjusters before the action was brought. The Deputy Costs Judge held that that work was done too far before the institution of proceedings to be recoverable as part of the costs of the proceedings, but the Judge on appeal took the opposite view.
The third point concerns the appropriate way to charge the hours spent in calculating the value of the lost books. The Claimant in fact used para-legals from his office at an hourly rate of andpound;75. However his own expert in evidence in the County Court proceedings had said that it was a mechanical exercise which could be conducted by someone of a lower clerical level. The Deputy Costs Judge allowed the higher rate, but for a far lower number of hours than claimed by the Claimant. On appeal the Judge, on advice from his assessors, held that the hourly rate claimed and allowed was too high, but that the hours allowed by the Deputy Costs Judge had been too few, and he substantially increased these accordingly, resulting in a small net increase for the claimant on this head of his appeal.
The final argument was that the Claimant was entitled to a much higher figure for costs overall than he had been allowed, based on a comment of Mr Justice Lightman in the case of Bank of Credit International SA (in liquidation) v Ali [2000] The Times, 2 March, where that Judge had said:
‘The costs order in favour of the successful party is generally to be adopted as calculated to achieve the ends of justice, but the court in any particular case might make a different order if on the facts of that case justice so required.’
The Judge in this appeal held that those words were not directed to an assessment of costs which had its own specific and clear rules, and concluded:
‘Whilst any Judge dealing with this matter is seeking to arrive at a just result it has to be obtained within the parameters of the Civil Procedure Rules when taken as a whole.’
On the question of the costs of the appeal the Judge awarded the Claimant 60% of these on the basis that his success in monetary terms had been relatively modest in relation to the substantial claims advanced on the appeal.
Citations:
[2001] EW Costs 3, [2001] EWHC 9004 (Costs)
Links:
Jurisdiction:
England and Wales
Costs
Updated: 08 June 2022; Ref: scu.185943
