“Reasonable” for Devon EL client to instruct London solicitors, says High Court

London lawyers: ruling not carte blanche for their use

The High Court has overturned a costs judge’s ruling that a radiographer based in Devon could not claim the cost of using solicitors in London.

However, Mr Justice Cranston – sitting with assessor Master Simons and solicitor Peter Todd – warned that the ruling “is no carte blanche for the instruction of central London solicitors in this type of case”.

In Acres v Royal Devon and Exeter NHS Foundation Trust [2013] EWHC 652 (QB), Margaret Acres, who worked as senior radiographer in the trust’s nuclear medicine department, developed repetitive strain injury and was medically retired. The Society of Radiographers, of which she was a member, typically instructed London-based Howard Kennedy for employer’s liability claims because the firm had built up specialist expertise on how its members worked.

In Mrs Acres’ case, however, the society advised her to consult the Plymouth branch of Thompsons, which decided there were not reasonable prospects of establishing liability. A second opinion was sought from Howard Kennedy, which believed there was a claim valued at £140,000. It eventually settled for £8,000, with Mrs Acres judged medically unfit to litigate the case. Costs were £79,000 and an argument over whether it was reasonable to instruct central London solicitors ensued.

Master O’Hare decided that it was not and to the extent that the case was out of the ordinary, the hourly rate could be up-rated (which he did, by 30%).

Mr Justice Cranston disagreed, finding the use of Howard Kennedy to be reasonable. He said Master O’Hare had failed to consider the reasonableness of the decision to instruct the firm in the light of Thompsons declining to act on the merits.

The judge accepted the submissions of Mrs Acres’ counsel, John Foy QC – using the factors outlined in the leading case of Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132 – that the claim was of considerable importance to Mrs Acres since the case had a potential six-figure value, and there were the legal and factual complexities.

Mrs Acres was dissatisfied with Thompsons and so she had to seek help elsewhere, making it natural and reasonable for her to turn to her professional association’s usual and preferred solicitors, Mr Foy added.