Can A Vulnerable Party’s Change Of Mind Justify Part 36 Withdrawal Of An Accepted Part 36 Offer?

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The High Court’s decision in Chinda v Cardiff & Vale University Health Board [2025] EWHC 2692 (KB) establishes that client vulnerability and medical conditions affecting concentration do not justify withdrawing an accepted Part 36 offer where no objective change of circumstances has occurred.

Background

The claim concerned a delay in the diagnosis of spinal tuberculosis which resulted in the Claimant sustaining a severe neurological injury [§2]. By reason of his injuries, the 35-year-old Claimant is essentially paraplegic, wheelchair-bound, with no movement in both legs [§3]. He suffers from significant neuropathic pain, paraesthesia and burning sensations, together with bladder, bowel and sexual dysfunction [§4]. There was also a small but material risk of future deterioration affecting his upper limbs [§5].

The Defendant, Cardiff & Vale University Health Board, admitted a breach of duty in failing to arrange an MRI scan when the Claimant attended the Emergency Department on 4 August 2020 [§2]. Judgment was entered for the Claimant on the basis of admissions made in the Defence, with damages to be assessed [§8]. A trial on quantum was listed for 2 October 2025 [§8].

A round table meeting took place on 1 July 2025, concluding at approximately 4:25pm [§9-10]. During this meeting, the Claimant, for the first time, indicated a wish to settle on a provisional damages basis [§10]. No settlement was reached, and it was agreed that the Claimant would propose terms [§11]. The following day, on 2 July 2025 at 3:42pm, the Claimant’s solicitors made a Part 36 offer which included a retained lump sum, a variable periodical payments order, and an order for provisional damages [§12, §29]. This offer was made on the basis of instructions given by the Claimant at the RTM on 1 July 2025 [§12].

On 8 July 2025, less than seven days later, the Claimant’s solicitors notified the Defendant of the Claimant’s wish to withdraw this offer [§13]. However, the Defendant accepted the offer on 22 July 2025 [§13]. The Claimant then issued an application on 29 July 2025 seeking permission to withdraw the Part 36 offer [§14]. By consent, the trial on quantum was vacated, and the court was asked to determine this application [§15].

Costs Issues Before the Court

The central costs issue was whether the court should grant the Claimant permission to withdraw his Part 36 offer pursuant to CPR 36.10 [§16]. The rule requires that where an offeree serves notice of acceptance of an offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer within seven days of the notice of acceptance [§16(2)(b)]. The court must be satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission [§16(3)]. The application turned on the interpretation and application of CPR 36.10(3).

The Parties’ Positions

The Claimant argued that there had been a change of circumstances sufficient to justify withdrawal [§22-26]. He relied on his medical condition, which caused him significant pain and fatigue, asserting that he found the RTM “really quite overwhelming and exhausting” and that “as a result of my fatigue and pain, I was unable to focus, think clearly and fully consider the instructions I provided to my solicitors on the day” [§22]. The Claimant characterised his condition as rendering him vulnerable and affecting his ability to provide clear instructions during the round table meeting [§26].

The Claimant stated that after the meeting, he had the opportunity to rest, reflect, and seek independent financial advice from an IFA and the author of his Periodical Payment Suitability report, leading him to prefer a lump sum award over the periodical payments structure originally offered [§17, §23]. He said that his revised offer, made on 29 July 2025, was for a lump sum of £7,350,500 – identical to an alternative lump sum offer previously made by the Defendant at the RTM [§25(iii)]. The Claimant also noted that the provisional damages element was now more limited (relating only to upper limb deterioration, not bladder/bowel/sexual function), being more favourable to the Defendant [§25(iv)].

The Claimant further argued that he had notified the Defendant promptly of his wish to withdraw (less than seven days after making the offer, and well before acceptance) [§25(i)], and that all quantum issues were agreed, with the only remaining dispute being the form of the award [§25(v)].

The Defendant opposed the application, contending that no relevant change of circumstances had occurred [§27-28]. They argued that the Claimant’s change of mind, based on a reassessment of known facts, did not meet the threshold required by CPR 36.10(3) [§28]. The Defendant highlighted that the Claimant’s Part 36 offer was made at 3:42pm on 2 July 2025, almost a full day after the round table meeting concluded at 4:25pm on 1 July, allowing ample time for reflection [§29(ii)]. During this time, the Claimant could have rested, discussed the case with his family, or delayed making any offers until after obtaining financial advice [§29(ii)].

The Defendant explained that when considering whether to accept the Claimant’s Part 36 offer, it had concluded that the periodical payment structure proposed was more advantageous than a pure lump sum settlement, offering financial certainty and avoiding over or under-compensation given the Claimant’s impaired life expectancy [§30, §40]. The Defendant submitted that permitting withdrawal on these grounds would undermine the predictability and certainty fundamental to the Part 36 regime [§31].

The Court’s Decision

Senior Master Cook refused the Claimant’s application for permission to withdraw the Part 36 offer [§41]. In applying CPR 36.10(3), the court found that there had been no relevant change of circumstances [§38]. The Claimant’s reassessment of his preferences, influenced by his medical condition and subsequent advice, was characterised as a change of mind rather than a change in circumstances [§38].

The court acknowledged the Claimant’s vulnerability but found this did not constitute a change of circumstances for several reasons [§32-35]:

First, the amended overriding objective and Practice Direction 1A, which address vulnerability, relate to ensuring parties can participate fully in proceedings and give their best evidence [§33]. The emphasis is on participation in proceedings and the giving of evidence, not on decision-making about settlement offers [§33-35].

Second, at no point before the hearing had it been suggested that the Claimant might be vulnerable “in the sense that his ability to instruct his representatives might be adversely affected” [§34]. The Claimant’s specialist personal injury solicitors “should be presumed to be aware of his difficulties, particularly as they were referred to in the expert medical evidence obtained by them” [§35]. If there had been any real concern, the solicitors should have raised the issue or ensured their client had sufficient space to give instructions [§35].

Third, the Claimant did not assert that he lacked capacity to make his decision, and the Part 36 offer was made by solicitors acting on his behalf [§37].

The court emphasised that Part 36 is a self-contained procedural code designed to promote certainty and predictability in settlement negotiations [§36]. Parties and their advisors “need to know where they stand when offers to settle are made or considered” [§36]. The court referred to authorities such as Cumper v Pothecary and Retailers v Visa, which establish that a change of circumstances must be “some significant alteration in the circumstances surrounding the case” – such as new evidence putting a wholly different complexion on the case or a change in the legal outlook from a new judicial decision – and not merely a reevaluation of existing facts [§18-20, §39].

The court rejected the Claimant’s submission that there was no real difference between the original and revised offers [§40]. The Defendant had concluded that a periodical payment settlement was more advantageous, providing financial certainty and avoiding over or under-compensation in a case where life expectancy was impaired [§40].

The court concluded that “to hold otherwise would be to introduce an unacceptable degree of uncertainty into what should be a certain process” [§38]. Consequently, the Claimant was held to his original Part 36 offer [§41].

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Can Defendants Be Ordered To Pay Costs When Fundamental Dishonesty Allegations Fail?

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The High Court’s decision in Hakmi v East & North Hertfordshire NHS Trust [2025] EWHC 2597 (KB) establishes that defendants may be ordered to pay a percentage of a claimant’s costs arising from unsuccessful fundamental dishonesty allegations, even where the claimant has lost the underlying claim.

Background

The claim arose from clinical negligence allegations concerning the treatment of Mr Mohamed Atef Hakmi, a consultant orthopaedic surgeon, following a stroke on 16 November 2016. It was alleged that the second defendant’s stroke consultant at Norwich & Norfolk Hospital failed to offer thrombolysis, resulting in serious disability. Quantum was agreed at £1,033,824, subject to liability. [§1]

The trial, held in June 2025, focused on breach of duty and causation. The court dismissed the claim, finding that thrombolysis would probably not have altered the outcome even if offered. [§97] While the court identified certain process failures (including failure to check telemedicine equipment before the shift and failure to conduct hourly neurological checks post-admission [§65, §75]), the claim ultimately failed on causation: Mr Hakmi had made a very good, if imperfect, recovery, achieving a Modified Rankin Scale score of 2, which falls within the range of a good outcome whether or not thrombolysis had been administered. [§95-97]

During the proceedings, the defendants raised an allegation of fundamental dishonesty against Mr Hakmi under section 57 of the Criminal Justice and Courts Act 2015, contending that he had deliberately underperformed in neuropsychological and other assessments conducted by their experts (Dr Bach, Dr Hassan, and Dr Santullo) to advance his claim. [§98] This allegation was raised formally in the defendants’ counter-schedule dated 18 March 2025 and was maintained throughout the trial. [§134-135] The allegation was ultimately rejected by the court, which found that Mr Hakmi’s poor performance in testing could be explained by his psychological condition, fatigue from serious familial issues, and the organic effects of his stroke rather than deliberate malingering. [§126-129]

Costs Issues Before the Court

Following the dismissal of the claim, the court was required to determine the appropriate costs order. [§131] The primary issue was whether the defendants should bear a portion of the claimant’s costs due to their unsuccessful pursuit of the fundamental dishonesty allegation. The defendants had raised this issue in their counter-schedule dated 18 March 2025, and it was maintained throughout the trial despite the evidence becoming “increasingly wanting.” [§133]

The court also had to consider the general principle that costs follow the event, given the claim’s dismissal, and whether any order for costs payable by the claimant should be subject to enforcement restrictions.

The Parties’ Positions

The claimant submitted that the defendants should pay a percentage of his costs from the date the fundamental dishonesty allegation was formally raised (18 March 2025), arguing that the issue had been pursued without sufficient basis and had caused significant distress and reputational damage. [§134] The claimant’s solicitors had previously put the defendants on notice that costs would be sought if the allegation failed. [§132] The claimant proposed that 25% of his costs from 18 March 2025 would be appropriate, reflecting the resources devoted to defending the allegation. [§134]

The defendants contended that costs should follow the event, with the claimant paying their costs of the action. [§131] They argued that the fundamental dishonesty issue was properly investigated and pursued, and that some costs associated with it would have been incurred in any event as part of the defence. The defendants highlighted that they had made two “drop hands” offers shortly before trial, which were not accepted. [§132] They maintained that the allegation was raised and pursued in good faith, with counsel assuring the court that “careful consideration had been given to making and maintaining the allegation right through to submissions.” [§133]

The Court’s Decision

The court held that, while the claimant was liable for the defendants’ costs as the unsuccessful party, the defendants’ failure to establish fundamental dishonesty warranted a partial costs order in the claimant’s favour. [§133, §135]

The court found that the allegation had been pursued to the end of the trial despite the evidence being “properly explored at the trial and found increasingly wanting.” [§133] Critically, the court rejected the defendants’ argument that making such an order would “undermine the costs regime” or give defendants a “free tilt at raising the issue of fundamental dishonesty.” The court stated: “If anything it is the converse, not to make such an order would give a defendant a free tilt at raising the issue of fundamental dishonesty.” [§133]

The court noted several factors supporting a costs order in the claimant’s favour:

      • Reputational impact | There was “unfavourable national press coverage on the first day of trial” [§134]
      • Serious consequences if proved | The allegation, if established, “would have been disastrous for his reputation and career” [§134]
      • Opportunity to abandon | “It would have been open to Mr de Bono to have abandoned the issue after the close of evidence, or indeed earlier, but he did not do so” [§133]

The court rejected the claimant’s submission for 25% of costs, considering it too high, and instead ordered the defendants to pay 15% of the claimant’s costs from 18 March 2025, subject to detailed assessment on the standard basis if not agreed. [§134-135] This percentage reflected that some costs would have been incurred regardless, but acknowledged the additional burden imposed by the fundamental dishonesty allegation. The court also accepted Mr de Bono’s submission “that some of the costs would have been incurred in any event.” [§134]

The court also ordered that the claimant pay the defendants’ costs of the action, not to be enforced without the leave of the court. [§135]

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CPR 46.4 | Protected Parties | Court Rejects ‘Light Touch’ Approach To Assessement Of Solicitor-Client Costs Shortfall

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Background

In CFB v AXA Insurance UK PLC the Claimant, CFB, a protected party represented by a litigation friend due to a severe brain injury sustained from a fall at a construction site on 12 March 2019, succeeded in obtaining a £1 million settlement from AXA Insurance under the Third Party (Rights against Insurers) Act 2010.

During the proceedings, complex issues arose, including the denial of employment by the employer and AXA’s attempt to avoid the insurance cover based on non-disclosure of the Claimant’s immigration status.

The settlement precipitated two claims for costs: one inter partes claim (the Claimant’s costs against the Defendant) and one solicitor-client claim for costs (Prince Evans Solicitors LLP’s costs against the Claimant). The hearing for the costs determination took place over multiple dates: 7 August 2024, 12 December 2024, and 24 January 2025.

The settlement of inter partes costs stood at £378,000 (inclusive of interest and assessment costs) against a claim of £439,167.62. The solicitor-client costs included additional liabilities such as a success fee of £31,413.80 and an ATE premium of £1,680, along with a shortfall in costs recovered from the Defendant and a separate sum for “pure” solicitor-client costs amounting to over £23,000.

Costs Issues Before the Court

The costs issues before the court involved two primary claims. The inter partes claim needed approval for the settlement reached, involving a recovery percentage of approximately 85%. The more contentious issue was the solicitor-client claim.

Prince Evans Solicitors LLP (PE) sought recovery for additional liabilities, a shortfall in costs not recovered from AXA, and separate “pure” solicitor-client costs. These claims encompassed work related to the solicitor-client relationship beyond the settlement proceedings, specifically covering issues such as immigration advice and costs related to the Claimant’s appointment of a deputy under the Court of Protection.

The Parties’ Positions

Regarding the inter partes costs, the parties agreed on a settlement of £378,000 against a claim of £439,167.62. The negotiations for settlement appeared to have considered various vulnerabilities and potential deductions on assessment.

In addressing the solicitor-client costs, Prince Evans Solicitors LLP, through Mr. Roy KC, advocated for the court to take a “light touch” approach to approval, heavily relying on counsel’s advice. The solicitors argued that the current procedure for determining these claims was flawed, suggesting that a more lenient process aligned with the treatment of damages claims be adopted. They highlighted potential conflicts of interest given the litigation friend’s dual role as the solicitor’s spouse and the solicitor’s preference for a senior fee earner allaying concerns on the firm’s behalf.

The Court’s Decision

Costs Judge Brown scrutinised both the procedural aspects and the substantive costs claims put forward by Prince Evans Solicitors LLP.

In his decision, Costs Judge Brown addressed several criticisms raised by Mr Roy KC and Mr Smith, particularly regarding the scrutiny of solicitor-client cost claims. The Judge rejected the notion of a heavy presumption against approving settlements and underscored the necessity of detailed scrutiny in such cost matters given the potential conflicts of interest and the need to protect the interests of the protected party.

The court dismissed the suggested “light touch” approach, explaining that the existing rules mandated a meticulous examination of the costs claimed to ensure they were reasonable and in the interest of the protected party. Key to the judgment was the necessity to consider the merits of the costs claimed, not merely rely on the advice of learned counsel without further interrogation.

Concerns were raised over the high hourly rates charged, the substantial reliance on counsel, and the lack of delegation, which all contributed to an inflated costs claim. Furthermore, the claims for “pure” solicitor-client costs, including immigration advice and the appointment of a deputy, were considered highly unusual and possibly outside the scope of what could reasonably be charged under the CFA.

Ultimately, while the court approved the inter partes costs settlement, it refused to approve the solicitor-client cost deductions without a detailed assessment. The judgment emphasised that proper scrutiny and assessment were indispensable to safeguarding the interests of vulnerable parties and ensuring fair and reasonable solicitor remuneration.`

Part 20 Defendant Ordered To Pay 1/3rd Of Defendant’s Costs Of Defending The Action

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In Alison Healey (Widow And Executrix of the Estate of Simon Andrew Healey, Deceased) v Mr Daniel McGrath [2024] EWHC 1360 (KB) (07 June 2024), the High Court apportioned liability and costs between Ramsay Health Care UK Operations Limited and Mr Daniel McGrath, a consultant surgeon, following the death of a patient, Mr Simon Healey. The central issues were the extent of each defendant’s responsibility for the negligence and whether Mr McGrath (the Part 20 Defendant) should contribute to Ramsay’s costs of defending the main claim, which Ramsay had settled with the deceased’s widow. The court found Mr McGrath 75% liable for the damages and claimant’s costs, and exercised its discretion under Section 51 of the Senior Courts Act 1981 to order him to pay one-third of Ramsay’s costs in the main action, considering factors such as his primary responsibility and unsatisfactory conduct in the proceedings.

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Ainsworth Applies To Inter Partes Detailed Assessment, Samsung Does Not

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In Wazen v Khan, following settlement of a clinical negligence claim in the sum of £300,000, the defendant challenged the claimant’s costs. The key issue was whether the Ainsworth principles on the specificity required in points of dispute apply to inter partes detailed assessments, and if so, whether the defendant’s points of dispute complied with those requirements. Deputy Costs Judge Roy KC held that the Ainsworth principles do apply to inter partes assessments, although less particularity is required than in solicitor-client cases. The judge found that the defendant’s points disputing time for disclosure and ADR phases lacked the necessary specificity, as they did not identify the specific items being challenged and provided only broad-brush assertions of excess. Consequently, those points were struck out. The judgment also noted that the Court of Appeal’s decision in Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor (Costs) [2022] EWCA Civ 466, requiring a “clear and compelling reason” for exceeding guideline hourly rates, does not apply to detailed assessments.

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Letters Of Claim, Schedules Of Loss, Experts’ Fees And Hourly Rates | A Standard, Standard Basis Assessment

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In the judgment of HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO), Costs Judge James decided several preliminaty issues concerning the reasonableness and proportionality of Fortitude Law’s costs in representing claimants in several clinical negligence cases. The NHS Trust challenged the extensive and duplicative nature of the Letters of Claim and the over-pleading of the Schedules of Loss. They also criticised the medical experts’ fees, highlighting the extensive use of precedents and questioning the correlation between the fees claimed and the work undertaken. The judge, after thorough examination, found several aspects of Fortitude Law’s costs to be disproportionate. The judgment underscored the importance of maintaining proportionality in legal costs, especially in cases settled pre-issue. It also emphasises the need for legal practitioners to ensure that costs correlate reasonably with the work produced, particularly when using precedents.

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Costs Determined Following Partially Successful Clinical Negligence Claim

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Where Defendants Assert “Local Would Be Cheaper” | The Evidential Burden Falls On The Paying Party

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The Senior Courts Costs Office’s decision in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) establishes that defendants asserting “local would be cheaper” bear the evidential burden to prove local capacity and exp[ertise existed at lower rates—mere assertion is insufficient.

Background

The case concerned a claim brought by the family of Amanda Briley, who died on 28 December 2016 while a patient at the Bradgate Mental Health Unit [§2]. Costs Judge James handed down judgment on 9 June 2023, following a detailed assessment hearing that took place on 21 September 2020 [§1].

Amanda had a history of mental health difficulties, including Asperger’s Syndrome and emotional unstable personality disorder, and had been under the care of mental health services since 2013 [§2]. Her death followed a ligature incident after she was placed on an inappropriately low level of observations upon returning from Christmas leave [§17].

The claimants, Amanda’s father (on behalf of her estate), mother, and brother, brought proceedings against three NHS defendants: Leicester Partnership NHS Trust, University Hospitals Leicester NHS Trust, and East Leicestershire and Rutland Clinical Commissioning Group [§21-22]. The claims were advanced under the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976, common law negligence, the Human Rights Act 1998 (alleging breaches of Articles 2, 3, 8, and 14 of the European Convention on Human Rights) and the Equality Act 2010 (alleging disability discrimination) [§21, 104].

Prior to the civil claim, an inquest was initiated, and the claimants were granted Legal Help/Exceptional Funding for the inquest proceedings, alongside conditional fee agreements for the litigation [§37-38]. Two pre-inquest review hearings took place on 11 December 2017 and 30 May 2018 [§26, 30], during which issues such as the scope of the inquest, jury summoning, Article 2 compliance, and disclosure were addressed [§26, 94].

The defendants made a series of Part 36 offers, starting at £32,500 in July 2018 and increasing to £65,000 in October 2018 [§31, 34]. The claimants accepted the £65,000 offer on 16 November 2018, shortly before the full inquest was due to commence [§35]. The settlement included full admissions of liability from the first and second defendants, a letter of apology, and a commitment to involve the family in learning lessons from Amanda’s death [§35]. The costs of the pre-inquest reviews and the solicitors’ work formed the subject of the subsequent costs dispute, leading to a detailed assessment before Costs Judge James.

Costs Issues Before the Court

The court was required to determine two principal costs issues arising from the detailed assessment. A third issue concerning proportionality under CPR 44.3(2) (Point 5) was identified but expressly deferred pending the determination of Points 4 and 6, as proportionality required consideration of the total recoverable costs first [§40].

First, whether the hourly rates claimed by the claimants’ solicitors, Bhatt Murphy, were reasonable and proportionate (Point 4) [§39-48]. The claimants sought rates of £350 per hour for Grade A fee earner Ms Phillips, £140 per hour for Grade D fee earners, and £150 per hour for a costs consultant, against the defendants’ contention that lower rates based on National Band 2 guideline hourly rates should apply [§39].

Second, whether the costs incurred in attending the pre-inquest review hearings, totalling £14,770.67, were recoverable as costs incidental to the civil claim (Point 6) [§49]. The defendants argued that these costs were not of use and service to the proceedings [§52-64], while the claimants maintained they were essential for obtaining disclosure and advancing the civil claim [§77-109].

The Parties’ Positions

The defendants challenged the hourly rates on the basis that the claimants, residing in Leicester, should have instructed a local firm charging lower rates [§41-43]. They cited Wraith v Sheffield Forgemasters and A v Chief Constable of South Yorkshire, arguing that the involvement of counsel reduced the need for enhanced solicitor rates [§42, 46]. They contended that the guideline hourly rates for National Band 2 should apply, with any enhancement limited due to the case’s settlement value of £65,000 [§43, 47].

The defendants also disputed the recoverability of pre-inquest costs, relying on Roach v The Home Office and Lynch, and invoking the test from In re Gibson’s Settlement Trusts [§55] that such costs must be: (a) of use and service in the claim, (b) relevant to the issues, and (c) attributable to the defendants’ conduct. They asserted that the pre-inquest reviews involved routine procedural matters and that early partial admissions negated the necessity of incurring these costs [§52, 56-57].

The claimants defended the instruction of Bhatt Murphy as objectively reasonable, given the firm’s specialisation in deaths in state care and its recommendation by INQUEST [§66-69]. They referenced Solutia UK Ltd v Griffiths and Kai Surrey v Barnet and Chase Farm Hospitals NHS Trust [§66, 70], emphasising that the choice did not need to be the cheapest but reasonable in the circumstances.

On hourly rates, the claimants relied on Choudhury v Kingston Hospitals NHS Trust [§76] in arguing that outdated guideline rates should not constrain recovery in complex litigation, and invoked the factors under CPR 44.3 [§71]. Regarding pre-inquest costs, the claimants relied on Roach, Wilton v The Youth Justice Board, and Fullick v Commissioner of Police for the Metropolis [§77-80], contending that the reviews were crucial for securing disclosure, clarifying causation, and addressing systemic failures, which directly assisted in achieving the settlement with full admissions [§98-101]. They highlighted the defendants’ robust resistance and the volume of documentation involved as justifying their participation [§100, 102-103].

The Court’s Decision

On Point 4 (hourly rates), the court found that the claimants’ choice of Bhatt Murphy was objectively reasonable [§112]. The firm’s expertise in human rights and deaths in custody, coupled with the recommendation from INQUEST, met the reasonableness test under Wraith [§112-114]. The court noted the absence of evidence from the defendants that a local firm could have handled the complex, multi-faceted claim at lower rates [§115, 118].

Applying the factors in CPR 44.3, the court considered the case’s complexity, the specialised knowledge required, the importance to the parties, and the defendants’ conduct in robustly defending the claim [§119-125]. The court was particularly influenced by the defendants’ deployment of multiple legal teams at the pre-inquest reviews, with the claimants’ legal team being outnumbered by a factor of more than five to one [§100, 119].

The court applied the approach in PLK and Others (Costs) [§127], a Court of Protection case concerning general management matters, which indicated that rates within approximately 120% of the 2010 guideline hourly rates could be prima facie reasonable for work from 1 January 2018 onwards. The court found that the Grade A rate of £350 per hour was above this PLK-adjusted benchmark but justified due to the case’s complexity, specialist nature, and the defendants’ robust litigation conduct [§128].

A PLK uplift on £267/hour (top end London 3 Grade A rate) would bring it to just over £320/hour without any enhancement whatsoever [§128]. Given the factors enumerated above, the court was prepared to enhance the hourly rate above that amount. The claimed rate of £350 per hour for Ms Phillips was upheld as reasonable [§128].

The rates for Grade D fee earners (£140 per hour) were also allowed. Applying PLK alone would result in an hourly rate of £145 for Grade D London 3, and the court upheld the £140/hour claimed even though for Grade D work it would not have allowed any enhancement [§128]. The costs consultant rate of £150 per hour was also upheld, as this was specialised work meriting more than the guideline hourly rate for Grade D London 3 [§128].

On Point 6 (pre-inquest costs), the court determined that the costs of attending the pre-inquest reviews were recoverable as they were of use and service to the civil claim [§138]. Applying the principles from Gibson and Fullick [§129-134], the court found that the reviews were instrumental in obtaining disclosure, clarifying the scope of liability, and addressing issues relevant to the Human Rights Act and Equality Act claims [§136-137].

The court emphasised that the defendants’ early admissions were limited in scope (covering only the hours immediately before Amanda’s death) and did not extend to all three defendants until much later [§107, 120]. The pre-inquest efforts were necessary to secure full admissions covering the entire period of inadequate care, a meaningful apology, and commitments to systemic learning [§101-103, 120].

The attendance of one fee earner and junior counsel was deemed proportionate, especially given the multiple legal representatives for the defendants [§100, 119]. The court rejected the defendants’ characterisation of the costs as “eye-watering”, noting that in the context of the claimants’ wish to establish the full extent of systemic failures that led to Amanda’s death, the costs were neither disproportionate nor unreasonable [§141-142].

The court concluded that the costs were reasonably incurred and proportionate in the context of the claim’s non-pecuniary objectives (establishing truth, securing apologies, and ensuring lessons were learned) and the overall settlement achieved [§131-132, 138-140].

Recovering inquest costs where liability admitted

Recoverability of inquest costs in a civil claim

Recoverability of inquest costs and proportionality

Inquest costs when is an admission not an admission

Inquests London solicitors hourly rates and proportionality

The applicability of the guideline hourly rates on a detailed assessment

Entitlement To Payment Following Termination Of A CFA In Clinical Negligence Claim

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“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.”

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Medical Agency Fees

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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.

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