The Background

R v Barts Health NHS Trust (2022)

At a judicial review hearing in 2019 Mr Justice MacDonald held that the continuation of life-sustaining medical treatment was in the best interests of Tafida Raqeeb, a 5 year old girl who had been left with extensive and irreversible damage to her brain as a result of a non-traumatic brain injury.

The trust was ordered to pay 80% of the claimant’s costs, and there was a detailed assessment of the claimant’s bill of costs. 

The Issues

There was disagreement on the applicable hourly rate. The defendant argued:

1. the degree of legal complexity, whilst grave and complex, ‘was the sort that experienced counsel on both sides would be familiar with’.
2. the defendants had utilised senior counsel so a high level of expertise by the defendant’s solicitors was unnecessary and the defendant should be awarded a reduced hourly rate.

The claimant argued that ‘the level of skill, effort and specialised knowledge of the claimant’s solicitors was necessary to be able to pursue such a case. It was literally a life-or-death decision that was involved in the proceedings.’

Held

The Judge allowed the hourly rates as claimed and concluded that ‘the solicitors not only had the requisite skill, effort and specialised knowledge and responsibility appropriate for this grave case but also demonstrated it in their dealings with counsel and other solicitors. There is no warrant in my view for there to be a reduction in the hourly rates claimed simply on the basis that counsel was also involved in dealing with matters.’

Judge also commented that in his view, it was ‘a remarkable suggestion that a case whose own weight clearly justified using expertise to pursue it, can be downgraded in the choice of an appropriate solicitor by that solicitor’s choice of external assistance.’ He added, ‘it might be said that the choice of expert counsel was perhaps a reflection of expert solicitors.’

Comment

The Judge did end this point with the following:

‘The issue on assessment will be whether there was too much involvement of counsel, as the defendant contends. To the extent that the defendant is correct then either the solicitors’ charges or counsel’s fees will be reduced. But that does not mean that the hourly rates claimed by the solicitors should be reduced in any event.’

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