![Willis v GWB Harthills LLP & Others [2025] EAT 79, His Honour Judge James Tayler, Rule 76 Employment Tribunal Rules 2013, Rule 84 Employment Tribunal Rules 2013, Rule 74 Employment Tribunal Rules 2024, Rule 82 Employment Tribunal Rules 2024, Stage 1 Threshold Conduct, Stage 2 Discretionary Decision, Stage 3 Quantum Decision, Ability to Pay, Costs Discretion, Unreasonable Conduct, Capital Assets in Costs Assessment, Family Home Valuation, Equity Release, Joint Ownership of Property, Detailed Assessment, Standard Basis, Profit Share Entitlement, PHI Payments, Costs Capping, Broad-Brush Assessment, Means Assessment, Proportionality of Costs, Discretionary Factors in Costs Awards, Effect on Third Parties, Honesty of Party, Costs Application Principles, Conduct of Proceedings, Stage 4 Bowel Cancer Context, Zoopla Valuation Evidence, Stage 3 Costs Quantum, Shields Automotive Ltd v Greig, Howman v The Queen Elizabeth Hospital Kings Lynn, Jilley v Birmingham and Solihull Mental Health NHS Trust, Arrowsmith v Nottingham Trent University [2012] ICR 159, Vaughan v London Borough of Lewisham (No 2) [2013] IRLR 713, Doyle v North West London Hospitals NHS Trust, County Court Detailed Assessment, Costs Decision in Employment Tribunals](https://tmclegal.co.uk/wp-content/uploads/2025/06/Shutterstock_351049592-80x80.webp)
Key Points
- ‘Costs’ in litigation are legal costs which are incurred in the progression of litigation. Costs which are inherently non-progressive are not ‘costs’ properly claimable in a budget between the parties [10].
- The question to ask, where a whole category of expense is sought but is challenged, is: “Does an item of a specific type in a budget materially progress the case?”. If it does not, then it is not a budgetable or recoverable head of costs in principle [12].
- Having a fee earner attending rehabilitation case management meetings is not progressive in the above sense and does not fall within the notion of ‘costs’. Likewise, a fee earner attending on deputies so as to seek input into the ongoing drafting of the case in the form of the Schedule, when deputies do not properly play a part in such work, is not progressive [13].
- The argument that simply attending on these individuals is an ‘integral part’ of producing the Schedule of Loss, and hence allowable for inclusion as a budget item under that head is weak [14].
- The Rehabilitation Code requires consideration by both sides of whether rehabilitation would assist and that it is intended that both sides will collaborate in relation to consideration of rehabilitation needs. However, this does not mean that having lawyers attend rehabilitation meetings amounts to litigation costs [15].
- If these costs were to be allowable in principle, a separate phase or phases should be added ad hoc by the Judge to incorporate them as a specific identified category in any particular case [20].
Head Note
In the case of Thomas Hadley (a protected party by his litigation friend Laura McCarry) v Mateusz Przybylo [2023] EWHC 1392 (KB), the court had to decide at case management stage whether solicitor attendance time for meetings with medical and other professionals, as well as financial and court of protection deputies, could be included in a budget as part of the ‘Issues and Statements of Case’ phase. The claimant argued that this time was integral to producing the Schedule of Loss and should be included in the budget. The defendant, however, contended that these costs did not progress the litigation and should not be included.
Master McCloud found that attending these meetings did not progress the litigation and therefore did not fall within the concept of ‘costs’. She found the argument that attending these meetings was an ‘integral part’ of producing the Schedule of Loss to be “weak”. She also stated that while the Rehabilitation Code requires both sides to consider rehabilitation needs, having lawyers attend rehabilitation meetings did not amount to litigation costs.
The judge allowed £20,000 for the ‘Issues and Statements of Case’ phase as a whole. She suggested that if such sums were in principle allowable in a budget, a separate phase should be added ad hoc by the Judge to incorporate them as a specific identified category.
Due to the importance of this decision, the judge gave leave to the Claimant to appeal.
THOMAS HADLEY (A PROTECTED PARTY BY HIS LITIGATION FRIEND LAURA MCCARRY) V MATEUSZ PRZYBYLO [2023] EWHC 1392 (KB)
Full Summary
The issue to be decided in this case at case management stage was …
“whether the inclusion of solicitor attendance time in a budget, for attending case management meetings with medical and other professionals in the course of management of the Claimant’s rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss are in principle costs which may be included in a budget and whether, if so, it is appropriate to include those in the ‘Issues and Statements of Case’ phase of the budget on Form H.”
The claimant had sought to included about 1 hour each week with the Case Manager and 1 hour each week with each of the two Deputies, totalling 3 hours a week in the Issues and Statements of Case phase, as part of work on drafting and updating the Schedule ofLoss on an ongoing basis.
Parties’ respective positions and arguments
The claimant argued that the solicitor attendance time was an integral part of producing the Schedule of Loss, and hence should be allowable for inclusion as a budget item.
The defendant, on the other hand, argued that these costs did not progress the litigation and hence should not be included in the budget. They contended that ‘costs’ are legal costs which are incurred in the progression of litigation, and costs which are inherently non-progressive are not ‘costs’ properly claimable in a budget between the parties.
Decision
Master McCloud found that having a fee earner attend rehabilitation case management meetings and meetings with deputies to seek input into the ongoing drafting of the case did not progress the litigation and therefore did not fall within the notion of ‘costs’ [13].
She deemed the argument that simply attending these meetings was an ‘integral part’ of producing the Schedule of Loss, and hence allowable for inclusion as a budget item, to be “weak” [14].
The judge observed that the Rehabilitation Code does require both sides to consider whether rehabilitation would assist and that both sides should collaborate in relation to consideration of rehabilitation needs. However, this did not mean that having lawyers attend rehabilitation meetings amounted to litigation costs [15].
She further stated that the numerous attendances of the sorts proposed in this case did not progress litigation [16].
If the judge had decided that these sums of proposed expenditure in principle would progress the litigation, then the judge would have considered whether the proposed extent of attendance was reasonable and proportionate. However, this question did not arise given the judge’s decision [17].
The judge allowed as the budgeted (i.e., future) costs £20,000 for the Issues and Statements of Case phase as a whole [19]. She expressed a view that if such sums were in principle allowable in a budget, a separate phase or phases should be added ad hoc by the Judge to incorporate them as a specific identified category in any particular case [20].
Due to the importance of this decision, the judge gave leave to the Claimant to appeal [21].
COSTS BUDGETING | REHABILITATION CASE MANAGEMENT MEETINGS | PERSONAL INJURY | CASE MANAGER | MDT | ISSUE AND STATEMENTS OF CASE | PROGRESSIVE | LITIGATION
THOMAS HADLEY (A PROTECTED PARTY BY HIS LITIGATION FRIEND LAURA MCCARRY) V MATEUSZ PRZYBYLO | KEY EXCERPTS
“In my judgment having a fee earner attending rehabilitation case management meetings is not progressive in the above sense and does not fall within the notion of ‘costs’. Likewise a fee earner attending on deputies so as to seek input into the ongoing drafting of the case in the form of the Schedule, when deputies do not properly play a part in such work, is not progressive. It is for the Claimant to consider whether at trial they may be claimable as damages.” [13]
“The argument that simply attending on these individuals is an ‘integral part’ of producing the Schedule of Loss, and hence allowable for inclusion as a budget item under that head is weak, in my judgment. Information about case management, or incurred expenses of such things as money management can be achieved by the occasional letter to the case manager or relevant deputy or from obtaining documents for later disclosure, in the disclosure phase, and ultimately also in the Case Manager’s or Deputies’ witness statements which may or may not be needed for the purposes of a formal deputyship expert. Those are qualitatively different things from attending meetings for input into a Schedule of Loss, as is claimed here on a very significant scale. Thus, nothing in this decision says that in principle some phases in a budget cannot include engagement with case managers or deputies, such as for disclosure or witness statements and occasional letters. Past deputyship costs one notes are a matter of fact based on invoices possibly assessed by the SCCO, and the future cost of deputyship is a matter for a deputyship expert.” [14]
“It is true that the Rehabilitation Code requires consideration by both sides of whether rehabilitation would assist and that it is intended that both sides will collaborate in relation to consideration of rehabilitation needs. However, that does not in my judgment bear an interpretation that having lawyers attend rehabilitation meetings amounts to litigation costs. It may arguably form part of damages but that is not a matter for me.” [15]
“Thus, the (numerous) attendances of the sorts proposed here do not in my judgment progress litigation in this case. Note that I am not here saying that these costs are ‘unreasonable’ or ‘disproportionate’: those would be the tests I would apply if I were accepting that in principle they were‘costs’ for the purposes of a budget in the first place.” [16]
“If (per contra) I had decided that these sums of proposed expenditure in principle would progress the litigation then I would indeed have next to consider whether the proposed extent of attendance was reasonable and proportionate. Were I to have to decide that I would say that the sum and the extent of proposed attendance is unreasonable and would have striven to budget a lesser sum. However, that question strictly does not arise given my decision above.” [17]
“I shall express a view as to the correct phase for such sums if they were in principle allowable in a budget. My view is that no current phase is appropriate for such sums. If they were to be allowable in principle I lean to the view that a separate phase or phases should be added ad hoc by the Judge to incorporate them as a specific identified category in any particular case, assuming the sum can be budgeted judicially and is not too unclear to be determined in advance (in which case one might expressly decline to budget the item and leave it for detailed assessment). It may be hoped that some guidance can be given either by any appellate court or the Rules Committee if ultimately I am wrong and time cost of this sort is recoverable, as costs, at all in principle.” [20]
“Because of the importance of this decision I give leave to the Claimant to appeal, and will hear argument as to any ‘leapfrog’ in view of the impact it might have more widely. As to form of order if not agreed I will hear argument at a handing down hearing, and will hand down in absence of parties if agreed.” [21]
Link to Judgment
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