Gary Knight

Instruction of Leading Counsel in mesothelioma claim

When it comes to instruction of King’s Counsel, Gary Knight considers the following decision. 

Simon Coram (Executor of the Estate of Maragaret Jean Coram – Deceased) and D R Dunthorn & Son Limited – Neutral Citation – [2024] 

An appeal heard by Mrs Justice Yipp sitting with Costs Judge Naalingam on 22 March 2024 that warrants consideration as it deals with the instruction of Leading Counsel in a mesothelioma claim and emphasises the need to be able to justify the step on an assessment of costs.

Liability had been denied in the claim which was assigned to the fatal mesothelioma list with directions given, including the placing of the case in listing category C and listed for trial with a three day estimate commencing 2 March 2022. 

The matter settled 7 February 2022, £75,000 plus costs.  

The Appellant’s bill of costs was served which included abated brief fees for both Leading and Junior Counsel (£25,000 and £12,500 respectively plus success fees at 27.5%). The fees sought reflected 50% of the brief fees for trial and reflected, the court was advised, the stage at which the settlement was achieved. 

The Respondent’s arguments included that of proportionality submitting the costs sought to be “wholly out of kilter with the issues in the case” whilst the Appellant referred to the claim being worth £200,000 but had been reduced by the untimely death of the deceased and referenced the Respondent’s resistance to settlement until shortly prior to the trial. 

The costs were the subject of a provisional assessment on 4 October 2022 by which stage the only matters that were not agreed were counsel’s fees. 

The Deputy Costs Judge disallowed all of Leading Counsel’s fees. 

The matter was then subject to an oral review and in advance of the same Leading Counsel provided a statement (treated as an amendment to the Replies to Points of Dispute). 

Click here for the rest of the case summary and Gary’s comment.