Brendan Malkin
In what is believed to be the first case of its kind, Norton Rose has been found to have billed disproportionately high on a case that never reached trial
Norton Rose had sought nearly £500,000 in fees for an insurance matter in which the firm admitted that liability issues could be solved at a preliminary trial lasting three days.
Norton Rose, which billed for 1,800 hours of work according to the case report prepared by Lawtel, admitted that the number of documents involved was "very few in total". The firm would have called four witnesses and one expert witness, whereas the defendants were to use a single witness. The case report also states that Norton Rose's counsel's fees totalled £25,000.
Norton Rose's work included serving a claims form, a case management conference, disclosure, exchange of witness statements and full trial preparations. Two days before the trial was due to start a settlement was negotiated.
Barlow Lyde & Gilbert, for the defendant, alleged that Norton Rose's costs were excessive and "totally disproportionate" to the issues involved. Barlows' pre-trial checklist estimates that Norton Rose's costs to 1 September 2001, two months before the scheduled trial, should total £28,343.
Peter Hardy, the Norton Rose litigation partner who is handling the case, said that the costs assessment is subject to a full assessment hearing, and that is was not fair to comment on an ongoing matter.
Costs Judge Master Wright referred to the costs practice direction, which states that solicitors must not conduct litigation at rates that are uneconomic.
He also referred to the judgment of Lord Chief Justice Woolf in Home Office v Lownds that the approach to determining proportionality of costs has to be on an item-to-item basis or must take a global approach.
Woolf had added that lawyers may be able to recover costs where expenses incurred were "reasonable but not necessary", but that "conducting litigation in a disproportionate manner cannot be recovered from the other side."
Norton Rose alleged that Barlows' conduct in the case placed an extra burden on them, and the size of the costs reflect that. For instance, Barlows had made no effort to contact a key underwriter witness, so the claimants had to do it. Also, Norton Rose had to serve its claims form through official channels in Germany because the defendant refused to accept service in England, despite having previously instructed English solicitors.
