J M Ryan v Tretol Group Limited, Wright J Sitting with Assessors

Costs – Truscott -v- Truscott/Raith -v- Sheffield Forgemasters Limited – London Solicitors.

The Claimant was a Lagger and was diagnosed in 1992 as having thickened lungs as a result of past exposure to Asbestos dust. He went to Solicitors in Nottingham used by all Nottingham Laggers. The firm he instructed merged and the Solicitor who specialised in that work left. The new Fee Earner appeared to lack the expertise that his predecessor had. The case moved very slowly and in 1999 had only reached Directions stage. By then liability had not been admitted and no up-dated medical evidence had been obtained. The Claimant also had concerns about the cost of an insurance policy taken out to cover his costs and which he had been told was to cost him £82.00, but the cost of which had risen to at least £2,500.00 by 1998. The Claimant sought to change Solicitors and was advised to go to Rodney Nelson-Jones of Field Fisher Waterhouse. Mr Nelson-Jones carried on the case expeditiously and concluded it in November 2000.

At Detailed Assessment of Claimant’s costs, the Defendant took the view that it was unreasonable to instruct London Solicitors. The Costs Judge had very little information at that stage and was unaware of correspondence in which the Claimant criticised previous Solicitors for slowness. He was given to understand that the delays had been occasioned by the Claimant’s own conduct. He concluded that it was unreasonable for the Claimant to have dis-instructed his Solicitors and awarded substantially lower, Nottingham, rates. The Claimant appealed.

1. Permission would be given to let in further evidence, namely witness statements by Mr Nelson-Jones clarifying and explaining the circumstances in which the Claimant instructed him. (The decision in Ladd -v- Marshall being followed).

2. The Costs Judge had had insufficient information. Following the decision in Truscott, it was reasonable for the Claimant in the light of the further information before the Appeal Court, to have taken the view that there were no other firms with sufficient expertise in Nottingham to have taken on the case and that it was reasonable for the Claimant to have changed firms therefore and to instruct Mr Nelson-Jones.

Appeal allowed.

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