BL-2023-BRS-000024 - [2025] EWHC 2898 (Ch)

The claimants challenge the notional fees of the solicitors first of all on the basis that the court should not assess the notional costs by reference to the guideline rates for a London based firm. They say that it would not have been reasonable for a paying client to instruct a firm such as Morgan Lewis & Bockius UK LLP in relation to this claim and expect to recover the higher costs that would be charged to such a client by comparison with, say, a Bristol firm. The claimants rely on Truscott v Truscott [1998] 1 WLR 132, CA (also known by the name of the other case decided at the same time, Wraith v Sheffield Forgemasters Ltd). In that case, Mr Truscott lived in Tunbridge Wells, but, being dissatisfied with MFC, a local firm of solicitors, instructed ATC, a small London law firm, which was successful for him in his litigation. The judge held however that he could recover his costs only at a provincial rate. The Court of Appeal reversed the judge’s decision.

Kennedy LJ (with whom Waite and Auld LJJ agreed) said, at 141B-F:

“Instead of asking himself whether Mr Truscott had acted reasonably when he instructed ATC and seeking to answer that question having regard to all relevant considerations the judge answered it by applying one simple and in my judgment inappropriate test, namely a comparison between the rates charged by ATC and the rates charged by firms in the locality of the court and the locality in which Mr Truscott lived. The following are matters which, as it seems to me, the judge should have regarded as relevant when considering the reasonableness of Mr Truscott’s decision to instruct ATC :-

‘(1) the importance of the matter to him. It was obviously of great importance. It threatened his home.

(2)

the legal and factual complexities, in so far as he might reasonably be expected to understand them. Due to the incompetence of MFC the matter had taken on an appearance of some complexity.

(3)

the location of his home, his place of work and the location of the court in which the relevant proceedings had been commenced.

(4)

Mr Truscott’s possibly well-founded dissatisfaction with the solicitors he had originally instructed, which may well have resulted in a natural desire to instruct solicitors further afield, who would not be inhibited in representing his interests.

(5)

The fact that he had sought advice as to who to consult, and had been recommended to consult ATC.

(6)

The location of ATC, including their accessibility to him, and their readiness to attend at the relevant court.

(7)

What, if anything, he might reasonably be expected to know of the fees likely to be charged by ATC as compared with the fees of other solicitors whom he might reasonably be expected to have considered’.”

This decision is reflected in (and cited by) paragraph 30 of the Guide to the Summary Assessment of Costs, 2021, which begins:

“In a case which has no obvious connection with London and which does not require expertise only to be found there, a litigant who unreasonably instructs London solicitors should be allowed only the costs that would have been recoverable for work done in the location where the work should have been done … ”

The focus there is on whether it was unreasonable of the litigant to instruct London solicitors.

Assuming that it were right in the present case to ask whether the defendants acted reasonably, it does not follow that the factors identified by Kennedy LJ in Truscott would necessarily be the same today. The legal services market itself has changed enormously, over the last three decades, since Truscott was decided. There is much more choice of provider than there was then, and much more choice of funding agreement, including conditional fees, ATE insurance, and commercial litigation funding. Advanced technology is also eroding both distance and sense of place. Many firms have multiple offices in different parts of the country, including one in London, as well as large provincial centres. Some fee-earners work in more than one office. Specialisation is ubiquitous. A nimble-footed, highly specialist niche London firm, for example, may charge a higher hourly rate than a high-street provincial firm, but may do the same job more efficiently and quickly, so eroding the latter’s headline cost advantage. What it is reasonable for a paying litigant to do today in seeking legal services may therefore not be the same as at the time of Truscott. It all depends.

But, in any event, and as the claimants themselves accept in their written submissions, asking whether it was reasonable of the defendants to instruct a London firm rather than a provincial one would be an artificial exercise in the present case. This is because the defendants were allocated the services of this firm by Law Works, and had no real choice in the matter. If they wished to be represented free of charge by legal professionals, they would have to accept this firm. In my judgment, it is not appropriate to approach this matter by asking simply whether it was reasonable for the defendants to instruct Morgan Lewis & Bockius. As Snowden LJ made clear in Manolete, the power to make a pro bono costs order must be exercised having regard to the legislative purposes behind section 194, which include not only levelling the tactical playing field, but also funding legal services for those who cannot afford to pay for them.

All that said, I accept that this case was not legally or factually complex, and could have been handled by a local firm. But I do not accept that the case was not important to the defendants, or that it would have no personal financial impact on them. Apart from anything else, if the claimants had succeeded, there would probably have been an order for costs made against the defendants (albeit with the benefit an argument as to whether it was provable in their bankruptcy: cf Re Nortel Companies [2014] AC 209, [89]). The claimants’ final costs budget, dated 14 May 2025, was in the sum of £182,848.65 (excluding VAT). That is a significant potential liability for most people, and particularly for people of modest means beginning their retirement. In my judgment, it was reasonable for the defendants, unable to finance their defence by professional lawyers, to accept the offer of free representation by Mr Brown and Morgan Lewis & Bockius. I will therefore apply London band 2 hourly rates to the solicitors’ notional costs, rather than National band 1.