Where Defendants Assert "Local Would Be Cheaper" | The Evidential Burden Falls On The Paying Party

Defendants challenging a claimant’s choice of solicitor on grounds that local representation would be cheaper must produce evidence that local firms had capacity and expertise to have competently conducted the case at lower rates, mere assertion is not enough.

BRILEY V LEICESTER PARTNERSHIP NHS TRUST & ORS [2023] EWHC 1470 (SCCO)

In Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO), Costs Judge James determined whether enhanced hourly rates and pre-inquest review costs were recoverable following settlement of a claim arising from a death in mental health custody. On hourly rates, the defendants argued Leicester-based claimants should have instructed a local firm at National Band 2 Guideline Hourly Rates. Applying Wraith v Sheffield Forgemasters and CPR 44.3 factors, the court held instructing London specialist Bhatt Murphy was objectively reasonable given its expertise in deaths in state care and INQUEST’s recommendation. For 2017-2018 work, the court adopted the PLK and Others (Costs) approach, treating rates within approximately 120% of 2010 GHR as prima facie reasonable. The Grade A rate of £350/hour was justified above the inflation-adjusted benchmark due to case complexity and defendants’ deployment of multiple legal teams. On pre-inquest costs (£14,770.67), applying Gibson’s Settlement Trusts and Fullick v Commissioner of Police, the court held these were recoverable as of use and service to the civil claim, being essential for obtaining disclosure, securing full admissions and meaningful apologies, and addressing systemic failures beyond the immediate circumstances of death.

As to Point 4, hourly rates, I find first of all that it was objectively reasonable for the Claimants to instruct Bhatt Murphy. The firm has a national reputation for this kind of work and was recommended to the Claimants by INQUEST... INQUEST maintains a database of expert lawyers for such cases; they recommended Bhatt Murphy, and that recommendation is a fact upon which the Claimants are entitled to rely in accordance with the principles in Wraith... In the absence of any evidence that a 'local' firm existed with the resources to run this case to the standard provided by Bhatt Murphy, for less per hour than Bhatt Murphy were charging, I find that the location of Bhatt Murphy does not diminish the reasonableness of the Claimants' choice.

Citations

Wraith v Sheffield Forgemasters [1988] 1 WLR 132 Addressed the reasonableness of a receiving party’s decision to instruct solicitors outside their local area, focusing on whether the choice was objectively reasonable rather than the cheapest. A v Chief Constable of South Yorkshire [2008] EWHC 1658 (QB) Considered the suitability of instructing solicitors geographically distant from the claimants, relevant to assessments of hourly rates and proportionality. Johnson v Reed Corrugated Cases Ltd [1992] 1 All ER 169 Provided guidance on calculating reasonable hourly rates, including factors such as complexity, responsibility and conduct, with possible enhancements up to 70% in complex cases. Brush v Bower Cotton and Bower [1993] 1 WLR 1325 Discussed the circumstances under which significant uplifts on guideline rates may be warranted, with relevance to exceptional complexity and responsibility. Higgs v Camden & Islington Health Authority [2003] EWHC 15 (QB) Confirmed that exceptional complexity and high value of a claim may justify hourly rates significantly above guideline levels. Finley v Glaxo Laboratories Limited [1997] Costs LR 109 Addressed the principle that high enhancements above guideline rates should be reserved for exceptional cases, particularly where there are substantial issues of liability and damages. Jefferson v National Freight Carriers Ltd [2001] EWCA Civ 2082 Underscored the need for proportionality between costs and the value, importance, complexity, and planning of the litigation. Roach v The Home Office [2009] EWHC 312 (QB) Affirmed that inquest costs may be recoverable as costs incidental to a civil claim where they are relevant to the matters in issue and attributable to the defendant’s conduct. Humberstone R (on the Application of) v Legal Services Commission [2010] EWCA Civ 1479 Highlighted limitations for legal aid funding in inquest representation, influencing which inquest costs might be recoverable in civil proceedings. King v Milton Keynes General NHS Trust (SCCO, 13 May 2004) Considered the recoverability of inquest costs and confirmed the requirement to demonstrate their value to the civil claim. Stewart & Howard v Medway NHS Trust (SCCO, 6 April 2004) Addressed the inclusion of inquest-related legal costs in civil claims and required a clear link between inquest participation and the benefits to litigation. Fullick & Ors v Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) Held that the costs of attending an inquest may be recoverable where relevant and proportionate to the civil claim, particularly in Article 2 human rights actions. In re Gibson’s Settlement Trusts [1981] Ch 179 Set a three-part test for recoverability: costs must be of use and service in litigation, relevant to the issues, and attributable to the defendant’s conduct. Solutia UK Ltd v Griffiths [2001] EWCA Civ 376 Dealt with the question of whether the claimant’s choice of solicitor based on expertise was reasonable under the circumstances. Kai Surrey v Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451 Confirmed that a claimant need only show that the choice of solicitor was reasonable, not necessarily the best or cheapest. Choudhury v Kingston Hospitals NHS Trust [2006] EWHC 90057 (Costs) Addressed the justification for enhancements above guideline rates based on factors such as complexity and specialist expertise. Wilton v Youth Justice Board and Another (Costs) (High Court, 23 December 2010) Clarified that inquest costs can be recoverable if they help inform a civil claim and the issues being raised at the inquest align with those in the litigation. The Bowbelle (Ross v Bowbelle (Owners)) [1997] 2 Lloyd’s Rep 196 Held that inquest attendance through counsel could be recoverable where relevant to establishing facts, such as pre-death pain and suffering. Amanda Helen Lynch v Chief Constable of Warwickshire Police & Ors (SCCO, 14 November 2014) Examined pre-inquest attendance and disclosure under Rule 13 Inquests Rules 2013, emphasising careful fact-specific analysis for cost recoverability. Kazakhstan Kagazy plc v Zhunus [2015] EWHC 404 (Comm) Established that the recoverable costs are the minimum reasonably necessary to conduct a case proficiently and not the entirety of what a party chose to spend. PLK and Others (Costs) [2020] EWHC B28 (Costs) Approved judicial use of a 120% guideline uplift to reflect inflation in costs calculations where 2010 Guideline Hourly Rates had become outdated. Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 Reinforced the importance of investigating potential breaches of Article 2 rights, supporting the reasonableness of pursuing pre-inquest legal work to substantiate such claims.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

The reasonableness of a receiving party’s choice of solicitor is assessed objectively, considering whether a reasonable person in the claimant’s position, with the information available to them at the time of instruction, would have chosen that firm. Specialisation, recommendation by a relevant charity or body, and the ability to handle complex, multi-faceted claims are relevant factors, and the choice does not need to be the cheapest available.
When assessing the reasonableness of hourly rates, the court will have regard to the factors in CPR 44.3, including the complexity of the matter, the skill and specialised knowledge required, the importance of the matter to the parties, and the conduct of the opposing party. The Guideline Hourly Rates are a starting point but may be substantially exceeded in complex and specialised litigation.
Costs incurred in attending pre-inquest review hearings are capable of being recoverable as costs incidental to subsequent civil proceedings if they are of use and service in the claim, relevant to an issue in the claim, and attributable to the paying party’s conduct. The court will assess the relevance and utility of the specific steps taken in the inquest proceedings to the civil claim.
In determining whether inquest-related costs are proportionate, the court will consider factors beyond the pure monetary value of the claim, including the importance of ascertaining the cause of death, challenging systemic practices, and securing non-pecuniary remedies such as admissions, apologies, and commitments to learn lessons.
Where a paying party alleges that a receiving party could have instructed a cheaper firm, the evidential burden lies with the paying party to produce evidence that a suitable alternative firm existed which would have charged lower rates for the same specialised work. In the absence of such evidence, the receiving party’s choice of solicitor and the rates charged will be upheld.

"Without having been more than robust as they are entitled to be (and, as guardians of the public purse, the public would expect them to be) the Defendants were trying to limit the scope of what the Coroner would be looking at and therefore to limit the disclosure available to the Coroner and hence to the Claimants. That again made the pre-Inquest reviews of significant use and benefit in the civil claim because, in plain terms, but for their representation at those pre-Inquest reviews, the weighty presence of Defendant lawyers may have prevailed upon the Coroner and key documents and facts might never have come to the fore."

Key Findings In The Case

The Claimants acted reasonably and proportionately in instructing Bhatt Murphy as their solicitors, given the firm’s specialism in deaths in custody, the urgency of the situation, and the recommendation by INQUEST; the geographical location of the firm (London) did not render the choice unreasonable, and no evidence was supplied by the Defendants to demonstrate that a suitable, cheaper local firm was available to conduct equivalent work. [112-118]
The hourly rates claimed by the Claimants’ solicitors were found to be reasonable and proportionate in light of the complexity and importance of the case, the volume of evidence, the conduct of the Defendants, and the highly specialised nature of the legal work, particularly regarding human rights and equality law; the Grade A rate of £350 and Grade D rate of £140 were upheld. [127-128]
The costs of attending the pre-Inquest review hearings were found to be of direct relevance and utility to the civil claim, having materially contributed to disclosure, identification of issues, and the Defendants’ eventual full admission of liability; accordingly, they were recoverable as reasonably and necessarily incurred litigation costs. [136-138]
The pre-Inquest review costs were held to be proportionate despite being incurred prior to the service of a claim, due to their central role in securing non-pecuniary remedies (including admissions, apologies, and systemic reform commitments), and the broader public interest in accountability for Amanda’s death. [131-133, 141-142]
The court rejected the Defendants’ assertion that the level of representation at pre-Inquest reviews was excessive, finding that attendance by one solicitor and one junior counsel was reasonable given the complexity of the issues and the extent of the Defendants’ legal representation at the same hearings. [100, 140]

"All of these factors also affect not only the choice of Bhatt Murphy but the rates charged by that firm. I was assisted by learned submissions from Mr Smith and from Mr Buckley on how I should proceed to calculate a reasonable and proportionate hourly rate... As to the time spent on the case is not a factor of which either party made a great deal, but on the place where and the circumstances in which work or any part of it was done, I note Mr Buckley's submissions as to the specialised and challenging nature of proceedings before a Coroner's Court and I accept that this is yet another factor that affirms the choice of Bhatt Murphy to run this case."

The Senior Courts Costs Office’s decision in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) establishes that defendants asserting “local would be cheaper” bear the evidential burden to prove local capacity and exp[ertise existed at lower rates—mere assertion is insufficient.

Background

The case concerned a claim brought by the family of Amanda Briley, who died on 28 December 2016 while a patient at the Bradgate Mental Health Unit [§2]. Costs Judge James handed down judgment on 9 June 2023, following a detailed assessment hearing that took place on 21 September 2020 [§1].

Amanda had a history of mental health difficulties, including Asperger’s Syndrome and emotional unstable personality disorder, and had been under the care of mental health services since 2013 [§2]. Her death followed a ligature incident after she was placed on an inappropriately low level of observations upon returning from Christmas leave [§17].

The claimants, Amanda’s father (on behalf of her estate), mother, and brother, brought proceedings against three NHS defendants: Leicester Partnership NHS Trust, University Hospitals Leicester NHS Trust, and East Leicestershire and Rutland Clinical Commissioning Group [§21-22]. The claims were advanced under the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976, common law negligence, the Human Rights Act 1998 (alleging breaches of Articles 2, 3, 8, and 14 of the European Convention on Human Rights) and the Equality Act 2010 (alleging disability discrimination) [§21, 104].

Prior to the civil claim, an inquest was initiated, and the claimants were granted Legal Help/Exceptional Funding for the inquest proceedings, alongside conditional fee agreements for the litigation [§37-38]. Two pre-inquest review hearings took place on 11 December 2017 and 30 May 2018 [§26, 30], during which issues such as the scope of the inquest, jury summoning, Article 2 compliance, and disclosure were addressed [§26, 94].

The defendants made a series of Part 36 offers, starting at £32,500 in July 2018 and increasing to £65,000 in October 2018 [§31, 34]. The claimants accepted the £65,000 offer on 16 November 2018, shortly before the full inquest was due to commence [§35]. The settlement included full admissions of liability from the first and second defendants, a letter of apology, and a commitment to involve the family in learning lessons from Amanda’s death [§35]. The costs of the pre-inquest reviews and the solicitors’ work formed the subject of the subsequent costs dispute, leading to a detailed assessment before Costs Judge James.

Costs Issues Before the Court

The court was required to determine two principal costs issues arising from the detailed assessment. A third issue concerning proportionality under CPR 44.3(2) (Point 5) was identified but expressly deferred pending the determination of Points 4 and 6, as proportionality required consideration of the total recoverable costs first [§40].

First, whether the hourly rates claimed by the claimants’ solicitors, Bhatt Murphy, were reasonable and proportionate (Point 4) [§39-48]. The claimants sought rates of £350 per hour for Grade A fee earner Ms Phillips, £140 per hour for Grade D fee earners, and £150 per hour for a costs consultant, against the defendants’ contention that lower rates based on National Band 2 guideline hourly rates should apply [§39].

Second, whether the costs incurred in attending the pre-inquest review hearings, totalling £14,770.67, were recoverable as costs incidental to the civil claim (Point 6) [§49]. The defendants argued that these costs were not of use and service to the proceedings [§52-64], while the claimants maintained they were essential for obtaining disclosure and advancing the civil claim [§77-109].

The Parties’ Positions

The defendants challenged the hourly rates on the basis that the claimants, residing in Leicester, should have instructed a local firm charging lower rates [§41-43]. They cited Wraith v Sheffield Forgemasters and A v Chief Constable of South Yorkshire, arguing that the involvement of counsel reduced the need for enhanced solicitor rates [§42, 46]. They contended that the guideline hourly rates for National Band 2 should apply, with any enhancement limited due to the case’s settlement value of £65,000 [§43, 47].

The defendants also disputed the recoverability of pre-inquest costs, relying on Roach v The Home Office and Lynch, and invoking the test from In re Gibson’s Settlement Trusts [§55] that such costs must be: (a) of use and service in the claim, (b) relevant to the issues, and (c) attributable to the defendants’ conduct. They asserted that the pre-inquest reviews involved routine procedural matters and that early partial admissions negated the necessity of incurring these costs [§52, 56-57].

The claimants defended the instruction of Bhatt Murphy as objectively reasonable, given the firm’s specialisation in deaths in state care and its recommendation by INQUEST [§66-69]. They referenced Solutia UK Ltd v Griffiths and Kai Surrey v Barnet and Chase Farm Hospitals NHS Trust [§66, 70], emphasising that the choice did not need to be the cheapest but reasonable in the circumstances.

On hourly rates, the claimants relied on Choudhury v Kingston Hospitals NHS Trust [§76] in arguing that outdated guideline rates should not constrain recovery in complex litigation, and invoked the factors under CPR 44.3 [§71]. Regarding pre-inquest costs, the claimants relied on Roach, Wilton v The Youth Justice Board, and Fullick v Commissioner of Police for the Metropolis [§77-80], contending that the reviews were crucial for securing disclosure, clarifying causation, and addressing systemic failures, which directly assisted in achieving the settlement with full admissions [§98-101]. They highlighted the defendants’ robust resistance and the volume of documentation involved as justifying their participation [§100, 102-103].

The Court’s Decision

On Point 4 (hourly rates), the court found that the claimants’ choice of Bhatt Murphy was objectively reasonable [§112]. The firm’s expertise in human rights and deaths in custody, coupled with the recommendation from INQUEST, met the reasonableness test under Wraith [§112-114]. The court noted the absence of evidence from the defendants that a local firm could have handled the complex, multi-faceted claim at lower rates [§115, 118].

Applying the factors in CPR 44.3, the court considered the case’s complexity, the specialised knowledge required, the importance to the parties, and the defendants’ conduct in robustly defending the claim [§119-125]. The court was particularly influenced by the defendants’ deployment of multiple legal teams at the pre-inquest reviews, with the claimants’ legal team being outnumbered by a factor of more than five to one [§100, 119].

The court applied the approach in PLK and Others (Costs) [§127], a Court of Protection case concerning general management matters, which indicated that rates within approximately 120% of the 2010 guideline hourly rates could be prima facie reasonable for work from 1 January 2018 onwards. The court found that the Grade A rate of £350 per hour was above this PLK-adjusted benchmark but justified due to the case’s complexity, specialist nature, and the defendants’ robust litigation conduct [§128].

A PLK uplift on £267/hour (top end London 3 Grade A rate) would bring it to just over £320/hour without any enhancement whatsoever [§128]. Given the factors enumerated above, the court was prepared to enhance the hourly rate above that amount. The claimed rate of £350 per hour for Ms Phillips was upheld as reasonable [§128].

The rates for Grade D fee earners (£140 per hour) were also allowed. Applying PLK alone would result in an hourly rate of £145 for Grade D London 3, and the court upheld the £140/hour claimed even though for Grade D work it would not have allowed any enhancement [§128]. The costs consultant rate of £150 per hour was also upheld, as this was specialised work meriting more than the guideline hourly rate for Grade D London 3 [§128].

On Point 6 (pre-inquest costs), the court determined that the costs of attending the pre-inquest reviews were recoverable as they were of use and service to the civil claim [§138]. Applying the principles from Gibson and Fullick [§129-134], the court found that the reviews were instrumental in obtaining disclosure, clarifying the scope of liability, and addressing issues relevant to the Human Rights Act and Equality Act claims [§136-137].

The court emphasised that the defendants’ early admissions were limited in scope (covering only the hours immediately before Amanda’s death) and did not extend to all three defendants until much later [§107, 120]. The pre-inquest efforts were necessary to secure full admissions covering the entire period of inadequate care, a meaningful apology, and commitments to systemic learning [§101-103, 120].

The attendance of one fee earner and junior counsel was deemed proportionate, especially given the multiple legal representatives for the defendants [§100, 119]. The court rejected the defendants’ characterisation of the costs as “eye-watering”, noting that in the context of the claimants’ wish to establish the full extent of systemic failures that led to Amanda’s death, the costs were neither disproportionate nor unreasonable [§141-142].

The court concluded that the costs were reasonably incurred and proportionate in the context of the claim’s non-pecuniary objectives (establishing truth, securing apologies, and ensuring lessons were learned) and the overall settlement achieved [§131-132, 138-140].

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