Instruction Of Leading Counsel In Mesothelioma Claim

SIMON CORAM (EXECUTOR OF THE ESTATE OF MARGARET JEAN CORAM (DECEASED)) VS D R DUNTHORN & SON LTD | FULL SUMMARY AND KEY FINDINGS

Background and Chronology

This case involved Simon Coram, acting as the Executor of the Estate of Margaret Jean Coram (deceased), as the Claimant, and D R Dunthorn & Son Ltd as the Defendant. The case was heard in the Senior Courts Costs Office by Deputy Costs Judge Joseph.

• The Claimant’s father had previously died from mesothelioma, a disease associated with asbestos exposure, and a claim had been made against the Defendant, his father’s employer. This claim was settled for approximately £215,000.
• In July 2017, the Claimant’s mother sought advice on whether a further claim could be made against the Defendant in respect of her own mesothelioma, which was alleged to have been caused by secondary exposure to asbestos through washing her husband’s overalls.
• The Claimant’s mother died on 17 October 2017, and the Claimant pursued a claim in his capacity as Executor of her estate.
• Proceedings were issued on 17 October 2019, with a Schedule of Loss claiming approximately £112,000, including £90,000 for general damages.
• The claim was defended and a Case Management Conference (CMC) took place on 12 and 20 May 2020, with the trial set for a 5-day window commencing on 2 March 2022.
• On 28 January 2022, the Claimant’s solicitors delivered briefs to Leading Counsel, Mr Harry Steinberg KC, and Junior Counsel, Ms Gemma Scott, instructing them to advise in Conference on 3 February 2022 and to appear at the trial.
• The claim settled on 7 February 2022 for the sum of £75,000 gross (£57,971 net of CRU) with the Defendant agreeing to pay the Claimant’s costs of the action, to be assessed if not agreed. The trial date was vacated and the settlement was recorded in a consent order dated 18 March 2022.
• The Claimant served a Bill of Costs which claimed costs in respect of the brief fees of both Leading and Junior Counsel of £50,000, abated to £25,000 to reflect the settlement and the diary commitment for the trial, and £25,000, abated to £12,500 for the same reasons.
• The parties were able to agree all items in the bill save for the fees of Leading and Junior Counsel.
• On provisional assessment, the fees of Leading Counsel were disallowed altogether and Junior Counsel’s fees were reduced to £10,000.
• The matter proceeded to oral hearing at the request of the Claimant.

Issues to be Decided

The key issue to be decided by the court was the appropriateness of having instructed both Leading and Junior Counsel and the amount of their fees. Mr Steinberg’s brief fee was £50,000, abated to £25,000 to reflect the settlement and the diary commitment for the trial. Ms Scott’s brief fee was £25,000, abated to £12,500 for the same reasons.

The Defendant argued that the instruction of both Leading and Junior Counsel was unreasonable.

Parties’ Respective Positions

The Claimant argued that the complexity and difficulty of the case, its potential impact on other cases, and the need for careful cross-examination of expert witnesses justified the instruction of Leading Counsel. They also pointed to the fact that the case raised novel issues and had some public importance.

The Defendant contended that the case was well within the capabilities of Junior Counsel and that the instruction of Leading Counsel was not reasonable or proportionate.

Key Findings

The instruction of Leading Counsel was not reasonable and proportionate in this case:

“The essence of the Claimant’s Reply to this Point of Dispute was that it was reasonable to brief a Leader. It was also said that Counsel (i.e. junior Counsel, Ms Scott) had advised that a Leader should be instructed. No explanation was provided in the Replies as to precisely why and when Ms Scott might have given that advice. On 4 October 2022, I carried out a provisional assessment. I disallowed Leading Counsel’s fees altogether and I allowed £10,000 for Junior Counsel’s fees. In relation to the instruction of Leading Counsel, in my brief reasons, I identified that the correct question to ask was not whether the case was well within the capabilities of junior Counsel (as per part of the Point of Dispute) but whether it was reasonable and proportionate to instruct Leading Counsel.” [12-14]

The Claimant’s case was complicated and difficult, but this did not justify the instruction of Leading Counsel:

“This was a complicated and difficult case. It would have required considerable skill and expertise to present it appropriately, had it gone to trial, and would have required careful cross examination of expert witnesses. It was novel and would have had an impact on other cases. Mr Williams referred to the case of Bannister -v- Freemans [2020] EWHC 265, in which both Mr Steinberg and Ms Scott had been instructed for the claimant, and in which the claimant had lost on the facts. The Judge, an experienced personal injury specialist, in obiter dicta, came to conclusions on the statistical evidence which were highly damaging to this Claimant’s case theory. Bannister would have needed to have been discredited by the Claimant.” [28]

The judge rejected the argument that the instruction of Leading Counsel was justified due to the potential for the case to reach the Supreme Court:

“As Mr Steinberg had said in his evidence, this was a case which could easily have found its way not just to the Court of Appeal, but possibly to the Supreme Court.” [31]

The judge found that the value of the claim was not particularly high and this was a factor in disallowing the fees for Leading Counsel:

“The value of the claim was not particularly high but the value of a claim is not a factor which is given any special precedence over any other. The claim was low because it could not comprise any element for dependency. The Defendant should not be entitled to receive any benefit from the negligence which had caused Mrs Coram’s death. Ms Scott had advised the Claimant that he should instruct a Leader.” [33]

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