When two into one won’t go – High Court allows limited separate representation of co-claimants

Twin-track approach: court said separate representation was only reasonable up to a point

Twin-track approach: court said separate representation was only reasonable up to a point

A mother and her children who were separately represented as claimants in a long-running case are entitled to the costs of two sets of solicitors up to a point, the High Court has ruled.

Mr Justice Morgan found that though there was a “strong argument” that having separate representation was irregular, it was justifiable up to November 2012 because their interests were not identical, but he said they were aligned thereafter.

The case was a complex action relating to a trust and ownership of a house, with the substantive ruling handed down in June 2015.

Ruling in Ong & Ors v Ping [2015] EWHC 3258 (Ch), Morgan J found that the mother (Jane) and the children were co-claimants, rather than joint claimants, because they were not pursuing a cause of action vested in them jointly.

However, he continued, “on the assumption that the conduct of Jane and the children in this respect was irregular, any such irregularity was waived by the defendant, in so far as it was a matter for the defendant alone, rather than for the court”.

The claimants instructed joint counsel and so the separate representation by solicitors “did not impact in any way on the conduct of the trial or otherwise on the conduct of the proceedings”, up to the question of costs, at least.

At the same time, Morgan J said that had the claimants applied for an order permitting separate representation, he would have refused it.

The judge said that where the receiving parties were separately represented, the court would give them the opportunity to explain why the costs of this were reasonably incurred, and that it need not be left to the costs judge – here he considered himself better placed to make the decision.

Outlining the guiding principles in such a situation, he added: “If the court considers that the costs of separate representation exceeded what was reasonably necessary to present the claimants’ case and protect their interests, then the court will conclude that the additional costs (in excess of the costs which would have been incurred if the claimants had instructed a single firm of solicitors) were not reasonably incurred and those costs will be disallowed.”

Jane instructed Isadore Goldman, with the children were represented by Stephenson Harwood, and the claimants said that in effect only one set of costs was incurred.

It was said that a decision was reached in 2013 whereby the costs of disclosure would be borne principally by Stephenson Harwood and those of witness statement preparation by Isadore Goldman. Additionally, Stephenson Harwood was the lead firm in dealing with the trial bundle preparation. As regards responsibility for payment of counsel’s fees, this fell to Stephenson Harwood up to May 2014 and to Isadore Goldman thereafter.

Stephenson Harwood’s costs up to July 2015 were estimated to be £945,000, including a success fee of £237,000; Isadore Goldman’s were £519,000 plus a success fee.

The defendant argued that for the period when there should have been joint representation, the claimants should only be allowed to recover the costs of instructing either one firm or the other, but not both.

Morgan J said: “I do not think that can be right in view of the likelihood that not all of the work done by those two firms was duplicatory. I will not make a finding as to the extent of the duplication but in view of what I was told as to the division of the work between them, if I were to disallow the entirety of the costs charged by one of the firms, I would prevent the claimants recovering costs which were necessary for them in order to conduct the litigation.”

He ordered the costs judge to determine the costs which would have been incurred if the claimants had used one firm of solicitors. “On the basis of the submissions made to me, it is likely and certainly possible, that the costs recoverable will involve the addition of some of the costs incurred by Stephenson Harwood to some of the costs incurred by Isadore Goldman.”

As to how the costs recovered would be divided between the claimants, the judge said it would be better to decide this after the detailed assessment.

“It would be wrong of me to decide anything on this point in the absence of argument but a possible preliminary approach would be to distinguish between charges for work which was not duplicated and charges for work which was duplicated.

“In the case of the former, it would seem right that the costs which are allowed for that work by one solicitor should be regarded as receivable by the client of that solicitor. As regards the latter category, it will be necessary to apportion that cost between the claimants.”

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