Legal aid lariam case dropped - the only thing these lawyers try to win are the fees

http://www.hmcourts-service.gov.uk/infoabout/scco/case_summaries/2003/2_03.htm


Simon Edwards & Others v Roche Products Limited


22 January 2003

Mr Justice Fulford (Sitting With Assessors)



This multi-party litigation concerned claims by over 100 claimants whose claims were brought against the defendant drug manufacturing company seeking damages for injuries sustained as a result of taking an anti malarial drug whose trade name was Lariam.



The legal aid contract to manage the group action was granted to Bristol solicitors in August 1996. Preliminary instructions were sent to experts and protective writs were issued and served in two cases in November 1996. Extensions of time were granted for the service of statements of claim and the matter was transferred to the Royal Courts of Justice for management of the proposed group litigation.



The Senior Queens Bench Master made an order on 23 July 1997 further extending time for the service of statements of claim until 28 November 1997.



Leading Counsel was instructed to advise in consultation on 14 October 1997. Bristol Junior Counsel was unable to continue with the case and new Junior Counsel based in London was instructed on 30 October 1997.



In view of the timetable set out by the Senior Master, Junior Counsel had a tight timetable in which to settle a draft statement of claim which could be adapted to serve 16 statements of claim by the end of November.



The statements of claim were duly settled following a conference with Junior Counsel on 6 November 1997 and an advice by Leading and Junior Counsel on 10 November 1997.



There was a further hearing before the Senior Master on 16 December 1997 when further directions were given.



Thereafter there was a change of both Leading and Junior Counsel in about June 1998.



The litigation came to an end with a consent order made on 12 October 1999 wherein it was ordered that the proceedings be discontinued with no order as to costs. The order also made provision for detailed legal aid assessment. The certificate was discharged on 20 July 2001.



At the detailed assessment of the legal aid costs on 1 and 4 March 2002 the Costs Judge disallowed seven blocks of 8 hours each (category A) which Junior Counsel's fee note described as "General Reading" on 30 October, 31 October, 3 November, 5 November, 7 November, 11 November and 13 November 1997.



The Costs Judge also disallowed two blocks of 8 hours each (category B) which the fee note described as "Preparation for Drafting Statements of Claim" and "Further Preparation for Drafting Statements of Claim" on 19 November and 20 November 1997 respectively.



The Cost Judge's reasons for disallowing these blocks of time were not recorded, but it was clear that Junior Counsel had not supplied any note to give the Costs Judge any more information about the work which had been done during those blocks of time.



Junior Counsel requested permission to appeal. Mr Justice Davis gave permission on 30 July 2002. He said:



"Reasons:



(1) The explanation for the delay is acceptable.



(2) The reasons for the Costs Judge disallowing so great a proportion of counsel's fees is not apparent from the papers. I think it is arguable that the Costs Judge may have been wrong to disallow some 70% of counsel's fees (mostly relating to reading in and preparation) which fees are supported by fee notes and were for work instructed to be carried out. It is for counsel to decide what materials to deploy before the court on the appeal; it might be advisable to produce at least samples of the statement of claim drafted and indications of the amount of preparatory work needed.



As to category C fees, I think these were open to be assessed by the Costs Judge as he did in his discretion: I refuse permission on this (relatively minor) aspect of the proposed appeal."



The category C fees related to conferences where the Costs Judge had reduced the fees claimed by Junior Counsel.



At the hearing of the appeal, bundles were provided which included notes of the relevant hearings and conferences and copies of counsel's advices to give the background to the work which had been done before Junior Counsel had been instructed at the end of October 1997 and the work which he then did. A copy of the draft statement of claim was also provided. In addition there were two bundles comprising articles, papers and research documents on Lariam, reports and letters to and from clinicians.



Junior Counsel presented his own case at the appeal and he accepted that he had not provided a note to assist the Costs Judge and that therefore the only guidance he had had was the information provided in the fee notes and the evidence of the work which had been done before he became involved, the tight timetable and the work which he had done during that time.



He referred to CPR 44.4 and 44.5 and submitted that the fees he claimed should be allowed on the standard basis because the factors involved had been satisfied.



Mr Justice Fulford in giving judgment said that the court had not been assisted by the lack of information which was available to indicate what work had actually been done during the relevant blocks of time although it had been helped by counsel's general observations on the work which he had done. He said that he had to consider what costs were reasonable in amount and reasonably incurred.



Working from the relatively limited material available he considered that the category B items (drafting the statements of claim) should be allowed in full. That was 16 hours at £150 per hour, making £2,400.



He considered that of the category A items (7 periods of 8 hours each described in his fee note as "General Reading") four periods should be allowed. That was 32 hours at £150 per hour making £4,800.



The effect of that was that an additional £7,200 would be allowed.



In the course of the hearing it was established that the solicitors had written to the Lord Chancellor's Department on 29 May 2002 and 12 June 2002 sending them the appeal notice. However they had not contacted the Lord Chancellor's Department again following the permission to appeal given on 30 July 2002. This meant that technically there had been a failure to observe the requirements of Regulation 113(4) – (7) of the Civil Legal Aid (General) Regulations 1989 as amended. However the Lord Chancellor's Department had written to the solicitors on 19 September 2002 acknowledging their letters and saying that on the available papers, the Lord Chancellor did not wish to appoint a solicitor to intervene in the case. Mr Justice Fulford said that in view of that letter he did not propose to take any further step in relation to the technical breach.



Mr Justice Fulford said that he proposed to allow the costs of the appeal as costs to which the certificate relates in accordance with Regulation 113(2). However he considered that he was unable to summarily assess the costs of the appeal because of the provisions of Section 13.9 of the Costs Practice Direction. Accordingly he ordered a detailed assessment of the costs of the appeal.