Marshall v Fife Health Board [2013] ScotCS CSOH_140 (12 July 2013)

Marshall v Fife Health Board [2013] ScotCS CSOH_140 (12 July 2013)

The Auditor erred in law by disallowing counsel's fees and related expenses on the basis that they were agent and client charges not recoverable on a party and party basis. The only relevant test is reasonableness. Pre-litigation and procedural advice by counsel, if reasonable, is recoverable. The Auditor also erred in abating senior counsel's daily rate solely because only quantum was in dispute; the rate must be assessed for reasonableness, not the nature of the issue.

Citation
[2013] ScotCS CSOH_140
Parties
Pursuer: Sarah Marshall; Defender: Fife Health Board
Jurisdiction
Scotland
Judgment Date
12 July 2013
Procedural Posture
Note of Objections to Auditor's Report / Post Trial, Objections to Taxation of Expenses
Outcome
Appeal allowed in respect of paragraphs 7, 11, and 12 of the Auditor's Minute; matter remitted to Auditor to give effect to the court's ruling.
Legal Topics
Taxation of Costs, Party and Party Expenses, Agent and Client Expenses, Counsel's Fees
Civil Procedure Costs Taxation of Costs Party and Party Expenses Agent and Client Expenses Counsel's Fees

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Parties

Sarah Marshall

Pursuer

Fife Health Board

Defender

Procedural Posture

Note of Objections to Auditor's Report / Post Trial, Objections to Taxation of Expenses

Legal Issues

  1. 1 Whether certain counsel's fees and related expenses are recoverable on a party and party basis or only as agent and client charges
  2. 2 Whether the Auditor erred in law by disallowing specific items as non-recoverable agent and client charges
  3. 3 Whether the daily rates for senior counsel's fees should be abated due to the nature of the issues remaining in dispute

Ratio Decidendi

The Auditor erred in law by disallowing counsel's fees and related expenses on the basis that they were agent and client charges not recoverable on a party and party basis. The only relevant test is reasonableness. Pre-litigation and procedural advice by counsel, if reasonable, is recoverable. The Auditor also erred in abating senior counsel's daily rate solely because only quantum was in dispute; the rate must be assessed for reasonableness, not the nature of the issue.

Court Disposition

Appeal allowed in respect of paragraphs 7, 11, and 12 of the Auditor's Minute; matter remitted to Auditor to give effect to the court's ruling.

Orders

  • Junior Counsel's fee of £500 plus VAT for pre-litigation consultation allowed.
  • Junior Counsel's fee of £150 plus VAT for advice on lodging expert report allowed.