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A v Chief Constable of South Yorkshire, High Court, 17 July 2008

15 August 2008
The issues

Costs – Wraith v Sheffield Forgemasters Ltd – whether reasonable litigant would have instructed a solicitor based outside his local area -charging rates.

The facts

The Claimant alleged that in April 1998 police officers in Sheffield unlawfully searched and detained him and thereafter maliciously prosecuted him for affray, assault and criminal damage. As a consequence, he claimed he developed paranoid schizophrenia. The claim was settled for £300,000.00. The Claim Form was issued in London. Case Management was transferred to the Sheffield District Registry. The Claimant initially instructed a firm local to him in Sheffield but thereafter instructed Ms Murphy at Bhatt Murphy, a London firm. The Legal Aid Certificate was transferred to Bhatt Murphy. The Deputy Costs Judge took the view that, in essence, this was a personal injury claim. The issue of liability was complex. A solicitor with experience of police matters ought to have been able to deal with the matter properly, with the assistance of experienced Counsel if necessary. He found it incumbent upon the Claimant to make some effort in relation to looking for a different or specialist firm in the locality rather than “simply the only firm that perhaps he had heard of”. He found that a local firm ought to have been instructed and that the rates ought to be those of a firm in that area. The Claimant appealed.

The decision

The Deputy Costs Judge had rightly characterised the claim as a personal injury claim. He appreciated the need for a solicitor with experience of bringing claims against the police.

The Costs Judge rightly found the case as one requiring a solicitor with three fold experience in bringing claims against the police, establishing claims for psychiatric injury and understanding the significance of racist actions in the causation of psychiatric harm. In the Points of Dispute, the Defendant had stated that the claim could have been handled by a large number of solicitors in the Sheffield area which specialised in exactly this type of case, amongst them Irwin Mitchell and Howells LLP.

The Claimant’s position was that there was no sound evidential basis for finding that in 1999 there were, in Sheffield, solicitors with the three-fold experience of Ms Murphy.

However, on an assessment of costs, it was not the case that evidence was required to establish the proposition that in 1999 there were, in Sheffield, solicitors with experience of bringing claims against the police. Counsel for the Claimant had appeared to accept that on an assessment of costs the Court was entitled to have regard to the Court’s own view and that of the assessors on such a matter. It was common ground that Irwin Mitchell had offices in Sheffield in 1999 and it was the view of the Court and its assessors that the firm was likely to have had experience of bringing claims against the police. Although the Legal Aid Authorities had transferred the Certificate to Bhatt Murphy, the reasons for the decision were not in evidence and there was a limit therefore to the weight that could fairly be attributed to that factor.

Whilst a reasonable litigant might well consider it advantageous and beneficial to instruct a solicitor such as Ms Murphy, a reasonable litigant would not necessarily require such a solicitor. There was no evidence that the Claimant had identified, or that a reasonable litigant would have identified the three-fold experience as something which he needed. A reasonable litigant would have an awareness of comparative fees in London and Sheffield. In assessing whether the reasonable litigant would reasonably have been expected to be aware of the comparative level of fees one had to put to one side the fact that this particular Claimant was legally aided and assume that the reasonable litigant was funding his legal representation himself.

Such a litigant would clearly enquire into the level of fees charged by Bhatt Murphy before instructing that firm and would compare that level of fees with the level of fees charged by a Sheffield firm with experience of bringing actions against the police. He would have appreciated that there was a substantial difference in rates. A reasonable litigant would inevitably consider whether, in these circumstances, it was reasonable and proportionate to instruct Ms Murphy and, in the Court’s judgment, he would have considered that it was not because of the added substantial cost of so doing.

Appeal dismissed.

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