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Kent asbestosis victim entitled to instruct Central London solicitors

6 April 2010

An asbestosis victim from Broadstairs in Kent was entitled to instruct solicitors in Central London to pursue his damages claim, the High Court has ruled.

William Higgins was 82 when he was diagnosed with asbestosis by a consultant in Margate, who mentioned the name of Field Fisher Waterhouse (FFW) solicitors in Central London. Higgins had been exposed to asbestos while working for the Ministry of Defence in Devonport.

Giving judgment in Higgins v Ministry of Defence [2010] EWHC 654 (QB), Mr Justice Tugendhat said that Higgins entered into a conditional fee agreement with FFW, and the firm entered a maximum hourly rate of £345.

Counsel for the MoD argued that this was excessive and other solicitors in Kent and Greater London were available who could have worked for less.

“It was not suggested that there were any solicitors in Broadstairs with the relevant expertise, or that the case had a greater link with any location other than with London,” Tugendhat J said.

“Other solicitors who were identified were in other towns in Kent, including Tunbridge Wells and Maidstone. It was even suggested that solicitors should have been chosen from Essex and Wimbledon.”

Counsel for the MoD submitted that, according to the guidelines for summary assessment, the recoverable hourly rate would have been up to £200 for Kent and up to £250 for Outer London firms.

The court heard that Higgins died weeks after a settlement was agreed with the MoD, under which he received £112,500 exclusive of costs. FFW claimed £12,700 in profit costs, plus disbursements of £2,220, which, when VAT was added, came to just under £16,000.

Counsel for the MoD accepted that FFW had the necessary expertise, but argued that so did many other solicitors.

Tugendhat J said that counsel for Higgins argued that it was wrong to focus on hourly rates to the exclusion of all other factors and it would have been difficult for Higgins or his daughter to discover from any list of solicitors provided by the Law Society or any other source to what extent such firms were experienced in this type of claim.

Tugendhat J said he agreed that the list of factors outlined by Lord Justice Kennedy in the leading case of Wraith v Sheffield Forgemasters [1998] 1 WLR 132 was “not to be treated as a checklist to be applied mechanically”.

He said there was no comparable geographical connection in the present case to a location other than London at which appropriate, but cheaper, legal advice would be available.

“I see no point of principle,” he said. “It is not in dispute that a reasonable litigant will normally be expected to investigate the hourly rates of solicitors whom he might instruct, and that he will normally be expected to consider a number of other factors, including the time and costs associated with geographical location, before choosing whom to instruct, and to take advice on these and other matters before he does so.

“He must keep down the costs of litigation, and that may well mean that if he goes to London solicitors who charge London rates for a case which has no obvious connection with London, and which does not require expertise only to be found there, then he may not recover costs on the basis of those rates.”

The appeal was dismissed.

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