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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Diacou v Staden [2000] EWHC 9003 (Costs) (4 February 2000) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2000/9003.html Cite as: [2000] EWHC 9003 (Costs)

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Diacou v Staden

4 February 2000

Mr Justice Sullivan Sitting with Assessors

1. On 2 October 1995 the claimant was granted legal aid to bring proceedings for damages for negligence against a treating dentist. Following various amendments to that certificate the solicitors were not in a position to issue a generally endorsed writ until 18 months later on 17 April 1997 because they had experienced difficulty in obtaining an effective expert’s report, but it was hoped that during the four month period within which the writ had to be served there would be sufficient time to enable counsel to settle the Statement of Claim. None was drafted within that period and it therefore became necessary to apply twice for ex parte orders renewing the validity of the writ. The second of these, made on 15 October 1997, renewed the writ’s validity until 31 October 1997.
     

2. On 16 October 1997 new solicitors took over from the previous firm, receiving the papers on 21 October, who thereupon effected service of the writ, and, following receipt of the claimant’s medical records, discontinued against the first four defendants, leaving only the fifth defendant in the action. An application to extend the time for serving the Statement of Claim was met with a cross application to strike out the writ and set-aside the ex parte orders, and the defendant was successful in that respect on 8 December 1997. The solicitors then instructed counsel to advise on the merits of a possible appeal. He advised promptly, in agreement with his solicitors that there were no such merits, but nevertheless a Notice of Appeal ought to be served to safeguard the first solicitors’ position in the event that the claimant took action against them for negligence for failing to issue the writ earlier than they did.
     

3. Reversing the Taxing Master, the court held that there was no need to apply for a formal amendment to the civil aid certificate pursuant to Regulation 51(b)(v) of the 1989 Regulations to cover counsel’s advice on the merits of an appeal as such cover is afforded by Regulation 59.
     

4. The second objection related to the solicitors’ claim for time spent on documents in the total amount of 49 hours 40 minutes. The Taxing Officer had allowed 18½ hours which was upheld by the Taxing Master on the basis that the majority of the time disallowed was in respect of obtaining counsel’s advice about the appeal.
     

5. The Judge, on the contrary, took the view that only 4 hours of the disallowed time was attributable to the appeal, and that the further reductions were too great because the Taxing Officer and Taxing Master had failed to take adequate account of the fact that the case had been transferred at a very late stage and much work had to be done in a very short time subsequent to that transfer, and accordingly, on advice from his assessors, the Judge increased the allowance to 40 hours.
     

6. The final point concerned the question of enhancement. Both the Taxing Officer and the Master had considered it an appropriate case to allow enhancement on legal aid only rates, the Taxing Officer allowing 35% and the Master 45%, though the solicitors had claimed 75%. The Judge agreed that the work had been done with exceptional competence, skill and expertise. This largely flowed from the unusual experience of the fee-earner handling the case, who was not only a qualified lawyer but had also been a dentist, so that his expertise saved public expense. The Judge felt that even the increased allowance by the Master of 45% was still insufficient, and further increased this to 60%.
     

7. Hopes that the Judge might give some general guidance as to enhancement on prescribed rates in legal aid only cases for the guidance of the profession were not fulfilled.