Higgins v Ministry of Defence [2010] EWHC 654 (QB)

Posted on Tuesday, March 30th, 2010

Following a diagnosis of asbestosis and probable lung cancer by the Claimant’s consultant in December 2007, the Claimant’s daughter instructed London Solicitors on the suggestion of the consultant (the Claimant lived in Broadstairs, Kent). By this time the Claimant could hardly walk and his daughter had moved in to care for him. The matter settled in May 2008, shortly before the Claimant’s death. When costs were assessed, the Defendant argued that it had not been reasonable to instruct Central London Solicitors for this case and that the Claimant had not undertaken a search of any local solicitors. However, it was held that it was not objectively reasonable to expect an elderly man who had just been diagnosed as being incurably ill to undertake a trawl of local solicitors when solicitors specialising in this field were suggested by an experienced consultant. The Defendant appealed.

On appeal it was held that the master had had been entitled to exercise his own judgment on a number of relevant considerations and that due to the Claimant’s age and the urgency of the case the Defendant’s submission that the Claimant should have investigated the level of fees charged by the Solicitors was rejected. It was not disputed that a reasonable litigant was normally expected to investigate solicitor’s hourly rates and consider a number of other factors prior to instruction including costs associated with geographical location and to take advice on these and other matters prior to choosing whom to instruct. Respect had to be given to the view of the judge deciding the case as to the weight attached to the relevant factors. The appeal was dismissed.


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