Home or Away?
The ‘local solicitor argument’
One of the most common, and possibly one of the strongest arguments deployed by a paying party on an assessment of costs, is the ‘local solicitor argument’.
This is where a client chooses to instruct a firm of solicitors who are not in his locality. The difficulty arises if this firm of solicitors charges a higher hourly rate than that levied by a local firm.
The paying party will argue that it is not reasonable for them to have to pay this higher hourly rate or consequent travel costs. This argument can be difficult to rebut, however, all is not lost.
The leading authorities here are Truscott v Truscott and Wraith v Sheffield Forgemasters [1998] 1 All ER 532. The appeals in the two cases were heard together.
In the appeal it was held that the correct test is not a simple comparison of the two areas hourly rates but whether or not it was reasonable, in all the circumstances, for the client to instruct the firm that he or she did.
This test is also supported in the case of Carpenter v Mid Kent Healthcare Trust 2 August 2001 and Bensusan v Freedman 20 September 2001 the latter case being decided by the then Senior Costs Judge Peter Hurst.
The appeal identified several factors to be considered in deciding whether or not the instruction of a non local solicitor was reasonable or not:
- The importance of the matter to the client.
- The legal and factual complexities of the case.
- The client’s possible dissatisfaction with previously instructed local solicitors (JM Ryan v Tretol Group Limited – SCCO Appeal 10 of 2002).
- Had the client sought or been offered advice as to which solicitors to instruct?
This proposition is also supported in the cases of Patterson v Cape Darlington (2001) SCCO Review No.4 of 2001 and William Higgins v MOD [2010] EWHC 654 (QB) (see below).
5. The location of the client’s home or place of work and the location of the Court where proceedings were commenced.
6. The location of instructed solicitor’s offices, their accessibility to the client and their willingness to attend Court on his behalf.
7. What, if anything, the client would have been expected to know of the fee structures of instructed solicitors compared to local solicitors.
Further to the above the specialisation required to reasonably and proportionately conduct the case should be considered. In the case of Mattel v RSW plc [2004] EWHC 1610 (Ch) instructed solicitors, while not local, were usually instructed by the client in cases of the instant type (infringement of trademark) and they had intimate knowledge of the client’s products.
If required expert evidence was only available local to the instructed solicitor’s offices that would also be a factor to be taken into consideration when considering the reasonableness of the instruction. This point was considered in Sullivan v Cooperative Insurance Society Ltd [1999] 2 Costs LR 158.
The above mentioned case of William Higgins v MOD [2010] EWHC 654 (QB) involved a vulnerable client. This case concluded, inter alia, that a vulnerable client should not be expected to have to trawl for a local solicitor when his Consultant had recommended a London firm who specialised in cases such as his. The Judge had considered the Wraith factors however he had concluded that while the factors were useful they were not of general application.
It can, therefore, be seen that the paying party cannot simply ignore the overall circumstances of the case and rely on the locations of the client and instructed solicitor in seeking to reduce the hourly rate recovered by the receiving party.
