A recent judgment has provided important guidance on several preliminary issues in the British Steel Coke Oven Workers Litigation, a long-running group action brought on behalf of more than 200 former workers and estates of deceased employees. While the substantive claims concluded in 2024 for an aggregate settlement of around £3.5 million, the costs remain highly contentious.

As is often the case in large-scale group litigation, the conclusion of the damages claims has not brought an end to the dispute. The focus has now shifted to recovery of costs, which remain highly contentious. The sums at stake are considerable, with both sides taking sharply differing positions on how costs incurred over more than a decade of litigation should be categorised and assessed.

The case involved sample assessments of 20 individual claimants’ costs, with the court asked to resolve four key issues of principle:

• Hourly Rates
• Recoverability of co-worker evidence
• Recoverability of probate costs
• Recoverability of “Mail Merge” items

Further line-by-line assessments of four individual bills are due to follow.

Hourly rates

Both claimant firms, Hugh James and Irwin Mitchell, claimed rates consistent with thd 2021 Guideline Hourly Rates (GHR), despite the litigation spanning from 2012 to 2024 (and 2010 GHRs applying for a substantive period). The defendant argued for reliance on the 2021 GHR as a ceiling, citing the overall settlement value and the “streamlined” nature of the post-2022 scheme.

However, the court accepted the claimants’ position that the cases retained the complexity of traditional industrial disease litigation. Evidence from multiple sites, long-tail disease issues, and the defendant’s insistence on each claimant proving duty, breach, and causation meant the work remained specialist and fact-specific.

The court concluded that the hourly rates akin to the 2021 guidelines claimed were reasonable and allowed them in full throughout the full course of the litigation, even for work preceding 2021, rejecting any distinction between common and individual costs work.

Co-worker evidence

A key dispute was whether the costs of obtaining co-worker statements should be treated as common costs (already agreed at £8.5 million) or individual costs.

The defendant initially argued that generic exposure evidence was for the common benefit. However, given that many claimants were deceased, the court held that co-worker statements were essential for proving individual exposure. Even where evidence overlapped across claimants, its primary purpose was to establish individual claims, and it was therefore recoverable as individual costs.

Probate costs

The defendant relied on Mosson v Spousal (London) Ltd [2016] to argue that probate costs were irrecoverable. The court distinguished between probate as an administrative requirement for estate management, and probate obtained solely for litigation purposes.

It held that if a grant was obtained only to enable proceedings, then the reasonable costs of doing so were recoverable. If the grant was required anyway for estate administration, only the cost of a copy could be claimed. The court confirmed that the evidential bar for establishing litigation-only probate was “not particularly high”.

“Mail Merge” costs

Finally, the defendant challenged entries described as “Mail Merge” by Hugh James, suggesting these were bulk letters amounting to common costs, and also that these communications were automated, such that claiming them as routine communications to each Claimant was unreasonable.

The Receiving Party had however, used an automated template but then automated bespoke aspects of each letter to each Claimant, and had subsequently capped the communication at 2 minutes each, rather than the usual 6 minutes.

The Court found that the Receiving Party firm’s process went beyond simple automation, requiring “topping and tailing” of correspondence. A pragmatic approach was taken: while the items could not justify a six-minute allowance which would have rendered them common costs, the capping at 2 minutes per Claimant was approved as specific costs (previously approved in Giambrone) and was considered reasonable.

Wider implications of the case

This decision provides valuable clarity for practitioners involved in group industrial disease litigation. It demonstrates the court’s readiness to allow GHR rates where work is demonstrably specialist and complex, even where claims are processed under a broader scheme. It confirms that co-worker evidence will generally be treated as individual rather than common costs where its primary purpose is to prove individual exposure.

It also clarifies the position on probate costs, distinguishing between administrative and litigation-only grants, and offers practical guidance on how courts are likely to approach the recovery of semi-automated correspondence.

With further detailed assessment to follow in the Bennett and Dawson cases, this judgment lays important groundwork for how costs will be handled in the remainder of the litigation, and it is likely to have a broader influence on the treatment of costs in other group actions.

How can ARC Costs Assist in Costs Disputes?

ARC Costs are an experienced and independent team of specialised Costs Draftsmen and Costs Lawyers. We assist both paying and receiving parties in resolving costs disputes, and are adept at preparing Costs Budgets and Bill of Costs for receiving parties, as well as providing legal costs negotiations services and preparing Points of Reply.

At ARC Costs we:

• Prepare and challenge costs budgets in high-value group actions, making sure figures are realistic, evidence-based and defensible.
• Represent clients at CCMCs, detailed assessments and costs appeals, giving clear, strategic advice on proportionality and reasonableness.
• Audit internal processes to ensure time spent on meetings, preparation and attendance is properly recorded and justifiable.
• Support settlement discussions through robust analysis of what is likely to survive judicial scrutiny.

Whether you are a receiving or paying party, our experienced costs team can help you with budgeting and assessment, safeguard recoveries, and control exposure in complex, multi-party litigation.

Should you require any assistance or free initial advice, please call us on 01204 397302, or email one of our costs experts direct on info@arccosts.co.uk.

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