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Bensusan v Freedman, Supreme Court Costs Office

15 November 2001
The issues

Costs only proceeding – location of Claimants solicitors – appropriate hourly rate – where claim should be issued – appropriate grade of fee earner – success fee.

The facts

The Claimant had a dental negligence claim. [The allegation was that a piece of dental equipment had fell on the Claimants tongue during root canal treatment and that she had swallowed it unintentionally]. Five weeks after letter of Claim an Offer to settle was made and accepted plus costs to be assessed if not agreed. The Claimant lived in Kent. The Defendant was based in Essex. A Specialist Dental Negligence Practice in Nantwitch had been consulted by the Claimant.
A Conditional Fee Agreement with success fee of 50% had been entered into. There was no after the event insurance policy.

The parties could not agree costs and the Claimant issued a Part 8 Application in the Crewe County Court to begin Costs Only proceeding CPR44.4(A).

The bill totalled £3419.69 which included base costs of £1170 and excess fee of £864. The work was carried out by a Grade 1 Fee Earner.

The decision

1. Whether the Claimant could instruct solicitors in Cheshire when she lived in Kent.
Following: Truscott v Truscott, Wraith v Cheshire Forge Masters Ltd and Sullivan v Co-operative Insurance Society Ltd – Claimant could instruct whatever solicitors she chose. There might be negligence cases in which it would have been reasonable to instruct this practice. However this was not such a case (Claimant had accepted an offer of £2000), but in any event hourly rates in Nantwitch were lower than in Tunbridge Wells. The rate for the area the work was done would be allowed.

2. Where the Claim should be issued.

The Claim was begun in Crewe County Court. This was the most convenient Court for the Claimants solicitors. Had the proceedings been issued the Court would have made an order for transfer.

3. Hourly Rate/Appropriate Level of Fee Earners. This was a clear and straightforward Claim, suitable for a Grade 2 Fee Earner especially by a Legal Executive. Therefore an hourly rate of £110 rather than £180 as claimed would be allowed.

4. The Success Fee – In light of the lack of complexity in this Claim and the solicitor’s knowledge at the date when the fee arrangement was entered into, the appropriate success fee was 20%.

5. Procedure – It was assumed that a decision had been reached between parties as to costs other than the quantum and that agreement had been made or confirmed in writing but no proceedings started.

* Costs only proceedings should be issued under Part 8 in the Court that would have been appropriate if substantive proceedings had been brought.

* The Claim Form had to identify the Claim, state the date and terms of the agreement and set out a Draft Order for the Court stating the amount of the costs claimed and whether costs were claimed on the standard or indemnity basis.

* The evidence in support of the claim had to include the documents proving the Defendants agreement to pay costs.

* An acknowledgement of service had to be filed by the Defendant.

* If no Acknowledgement was served the Claimant could ask the Court by letter to make the Order sought.

* The Court would make an Order for a Detailed Assessment or assess the Claim.

* Merely because the Defendant disputed the amount of the Claim or said it was issued in the wrong court, the Claim would not be treated as opposed and therefore be dismissed.

* A Defendant who made a Claimant commence proceedings under Part 7 in these circumstances would be acting unreasonably and the Court might make an Order for costs on the indemnity basis.

* A Summary Assessment should not be made in any circumstances immediately following the Hearing of the Application.

* The Summary Assessment should be made only by a Judge who had decided the substantive issue.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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