Pacey v The Ministry of Defence, Court of Appeal - Supreme Court Cost Office, April 06, 2009, [2009] EWHC 90138 (Costs)

Resolution Date:April 06, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Pacey v The Ministry of Defence

Neutral Citation Number: [2009] EWHC 90138 (Costs)

Case No: PR 0900260



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 6th April 2009

Before :


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Between :

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Mr Benjamin Williams (instructed by Field Fisher Waterhouse) for the Claimant

Mr Alexander Macpherson (instructed by Halliwells) for the Defendant

Hearing date: 19th March 2009

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Master Rogers:

  1. This judgment relates to my decision in respect of two preliminary issues raised on behalf of the Defendant in their amended points of dispute. Both points raise retainer issues, the resolution of which will make a substantial difference to the outcome of the detailed assessment if indeed it has to proceed in the light of this judgment.

    The Background

  2. The deceased, Derek Borrill, was born in 1943 and worked for some ten years from about 1960-1969 at Chatham Dockyard. He was in a welding gang on various ships and submarines and was, as such, obviously exposed to asbestos. He also worked alongside and in close proximity to laggers, who stripped off and removed old asbestos lagging to be replaced with new asbestos plaster. Laggers poured large sacks of asbestos powder into tubs mixed with water and applied the wet mix to pipe work and boilers. He removed asbestos lagging from pipeworks with a chipping hammer and used asbestos blankets draped over machinery where he was working to provide protection from molten metal.

  3. Obviously in those circumstances his workplace was thick with asbestos dust.

  4. The deceased left the employment of the Ministry of Defence in about 1969 and took up various teaching appointments until he took early retirement in his fifties.

  5. The medical evidence put before the court was that until 1998 he had been a heavy smoker and also that he sometimes drank to excess.

  6. The medical evidence also suggested that as a result of back trouble from which he suffered from 1979, he underwent back surgery in 1985.

  7. Following admission to hospital in 1996, with ascites, he was found to have alcoholic liver disease and thereafter moderated his alcohol intake temporarily though apparently subsequently increased it again.

  8. Following difficulty in walking any great distance, the deceased sought further medical attention in December 1998 and he was diagnosed as having asbestos-related pleurisy but was reassured that the condition was ``benign'' and ``harmless'' and that it should not be confused with more serious diseases.

  9. On 4 January 2000, the deceased was examined by Dr Mungall in his clinic and following that examination Dr Mungall wrote to Mr Borrills's GP explaining that the deceased had had a CT scan which had shown pleural thickening consistent with previous asbestos exposure and added:

    ``I have explained that he has benign asbestos pleurisy, no doubt related to his work as a civilian employee in the Chatham Dockyards. I reinforce that this is harmless in itself and not to be confused with asbestosis and mesothelioma. ''

  10. Although the deceased was then reviewed on an annual basis, no changes were reported in his condition, and his sudden and unexpected death on 1 January 2004 was described by the doctors as ``something of a mystery''.

  11. Following a post mortem, death was stated to be due to a) chest infection; b) asbestos-related diffuse pleural fibrosis.

  12. The deceased made his last will on 18 April 2000 by which time he had become estranged from his wife and accordingly did not appoint her his executrix, nor he did leave her anything in his will.

  13. The entire estate was left to his children Mark and Glenna, who of course by that time were adult and no longer dependent upon him. The executors appointed were Terence Stanley Pacey and Neil Marsland, both of whom were friends.

  14. The Grant of Probate was made to Mr Pacey on 11 April 2005.

  15. The deceased's son Mark has made a witness statement in which he states that he is employed by Jaggards Legal Costs Consultants in Peterborough as a costs negotiator and, because of that expert knowledge, when a question of possible compensation arising from his Father's death arose, Mr Borrill recommended to his Mother that she should instruct the Claimant's solicitors Field Fisher Waterhouse because:

    ``at the time it appeared they had the requisite degree of experience and appropriate level of specialist staff.''

  16. Messrs Field Fisher Waterhouse (hereafter referred to as FFW) entered into a Conditional Fee Agreement with the deceased's widow, Violet Borrill, on the 26 August 2005.

  17. Under the heading ``What proceedings are covered by this agreement?'' the following appears:

    · ``Your claim for damages arising out of your husband's death from asbestos related disease''.

  18. FFW undertook the case and in June 2007 they started proceedings. The case was handled by Ms Harminder Bains and amongst the papers lodged before me was an attendance note of 21 June 2007 which reads as follows:

    ``HZB rang Terry Pacey. I said as Executor the Claim Form would have to be issued in his name. Would he give me authority to do so as time was running out? He said yes he would do so. He said the other Executor had decided not to take a Grant of Probate. I said that was fine, I would just name him. I said it would be for the benefit of the children and the widow. He said OK. He gave me the address and phone number of the other Executor whose name is Neil Marsland. (Phone...

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