“This was not a case where a very high claimant offer reflected a very strong prospect of the claimant succeeding at trial. The parties were diametrically and evangelically opposed in terms of their characterisation – and, I sensed, subjective understanding – of the deal they had concluded. A discount of 1% is meaningless in such context. It amounts to saying ‘pay up now, accept that you are wrong’.”
In all, I am unpersuaded on the material that what has happened here amounts to a significant development, even on the definition given above. Whilst I acknowledge the need to avoid setting the bar too high by excluding matters that could not reasonably have been known, even if they can be said to be internal to the party seeking the variation, I am also conscious that the bar must be sufficiently high to encourage a rigorous approach to costs budgeting at the outset, otherwise a potential paying party cannot have the reasonable assurance that a costs budget is supposed to bring as to its potential liability in the event of an adverse costs order.
In Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO), Costs Judge James determined whether enhanced hourly rates and pre-inquest review costs were recoverable following settlement of a claim arising from a death in mental health custody. On hourly rates, the defendants argued Leicester-based claimants should have instructed a local firm at National Band 2 Guideline Hourly Rates. Applying Wraith v Sheffield Forgemasters and CPR 44.3 factors, the court held instructing London specialist Bhatt Murphy was objectively reasonable given its expertise in deaths in state care and INQUEST’s recommendation. For 2017-2018 work, the court adopted the PLK and Others (Costs) approach, treating rates within approximately 120% of 2010 GHR as prima facie reasonable. The Grade A rate of £350/hour was justified above the inflation-adjusted benchmark due to case complexity and defendants’ deployment of multiple legal teams. On pre-inquest costs (£14,770.67), applying Gibson’s Settlement Trusts and Fullick v Commissioner of Police, the court held these were recoverable as of use and service to the civil claim, being essential for obtaining disclosure, securing full admissions and meaningful apologies, and addressing systemic failures beyond the immediate circumstances of death.
“I do not doubt that the Claimant has experienced, and (as medical evidence exhibited to her witness statement demonstrates) continues to experience severe physical and psychological distress, including pain which seems, on the expert evidence, itself to have a major psychological element. She is entitled to every sympathy for those problems, which may well distort her judgment and her perception of events. It does not follow that she is not to be held responsible for what she says and does. On the evidence that has emerged in these proceedings, I cannot avoid the conclusion that the Claimant has been overstating the effect on her of her medical problems and underplaying her active role in the beauty business, first to support her damages claim and then to resist the Defendant’s claim for costs. I will explain that conclusion. Conclusions: The Defendant’s File Record.”
In my judgment, the mere fact that the £219,700 is subject to a right of assessment and may change in amount does not turn an otherwise liquidated sum into an unliquidated sum. The authorities cited above point towards this conclusion. This includes the authority relied upon by the Kings’ of Truex v Toll. Further and in any event, in my judgment the facts of that case can be distinguished. Truex concerned a debt arising out of an unassessed solicitor’s bill which needs to be determined by principles such as reasonableness and fairness. In this case, the Statutory Demand Debt was based on a court order. The court crystallised the amount payable on an interim basis at £219,700
The court concluded that the proceedings could fairly be described “in the round” as a personal injury case, and there were no “exceptional features” of the non-personal injury claims that would justify a departure from the starting point that a ‘cost neutral’ result would be achieved. The court’s decision was guided by the principle set out in Brown v Commission of the Police of the Metropolis [2020] 1 WLR 1257 at [57], which states that the QOCS protection would have been available for the personal injury claim, and it is expected that a ‘cost neutral’ result would be achieved through the exercise of the discretion unless there are “exceptional features of the non-personal injury claims”.
In a dispute involving alleged breaches of director’s duties, the claimants sought an order for the defendant to pay due costs of £59,258.30, failing which his defence would be struck out and judgment entered for the claimants for approximately £5.2 million plus interest. The costs order was related to a previous judgment requiring the defendant to provide further information pursuant to an Asset Disclosure Order. The court’s jurisdiction to make an ‘unless order’ striking out a statement of case if a party fails to comply with a previous costs order is well-established. The key question in such an application is whether the respondent cannot pay or will not pay. The defendant claimed he could not pay the costs order himself or raise the funds to do so. The claimants argued that the defendant had repeatedly breached court orders and had not proven his inability to obtain third-party funding. The judge found that the defendant had established his present impecuniosity and inability to raise the funds to pay the costs orders. Consequently, the application was dismissed.
In this mesothelioma case, the court disallowed the fees of Leading Counsel, finding their instruction unreasonable and disproportionate. The case involved a claim made by the Executor of the Estate of Margaret Jean Coram, whose mother had died from mesothelioma allegedly caused by secondary exposure to asbestos. The claim, which settled for £75,000, raised complex issues and had potential implications for other cases. The Claimant argued that the instruction of Leading Counsel was justified due to the case’s difficulty, impact, and public importance, while the Defendant contended that Junior Counsel was sufficient.
The judge ruled that the language of PD 47 was clear and necessitated the receiving party to provide a copy of the expert’s fee note(s) when asking the paying party to cover the cost of an expert. This allowed the paying party and the court to make an informed decision about the fee. The same principle was applied to fees of a medical reporting organisation.
“The Master of the Rolls’ emphasis on the Guide being “no more than a guide and a starting point for judges carrying out summary assessment” is important to bear in mind. I note that the Judge in the present case was not conducting a summary assessment, for which the Guide is principally intended, but was identifying, as a preliminary issue in a detailed assessment, the hourly rates that would apply. Mr Cohen drew my attention to paragraph 9 of the Guide, which provides that, “The general principles applying to summary and detailed assessment are the same”. That does not mean, however, that the Guide and, in particular the GHR, are as central to a detailed assessment as they are to a summary assessment…..