Rezek-Clarke v Moorfields Eye Hospital High Court Costs Office _ 17 February 2017

This is a medical negligence claim in which liability was admitted prior to proceedings. Proceedings were served in May 2015 and a settlement was agreed by the parties in July 2015. The claimant accepted the sum of £3250.

In October 2015 the claimant’s solicitors served a bill of costs totalling £72,320.85 which included an ATE premium of £31,976.49. The parties were unable to reach agreement and the Court undertook a provisional assessment in October 2016, reducing the claimant’s costs to £24,604.40. On 26 August 2016 the claimant requested an oral hearing to challenge the Judge’s finding that their bill had been disproportionate and to challenge the reduction made.

The defendant’s position was that the original bill was wholly disproportionate considering the low value of the claim and accepted the Judge’s provisional assessment as reasonable. The evidence looked at the basis of assessment of the ATE premium which appeared to have been calculated on the basis of 200% of the medical report costs. The Defendant produced evidence that appropriate cover was available for between £595 and £3,500.

The claimant disputed the provisional assessment on the basis of the Defendant’s conduct and claimed that causation was complex. There were also investigations into other potential defendants who were not ultimately pursued.

The Judge held that the claimant’s solicitors ought to have made an early assessment of the likely value of the claim and conducted the litigation accordingly. The Judge rejected the argument that profit costs should be assessed separately from additional liabilities, as post April 2013 a party’s costs ought to be looked at as a whole and any item can be disallowed or reduced if disproportionate even if reasonably or necessarily incurred.

The Judge maintained that his reduction of the ATE premium from £31,976.49 to £2,120 was reasonable and that the costs overall were disproportionate. He made slight increases to the sums allowed but they remained disproportionate. The total allowed at the final hearing hasn’t been reported.

Merrix v Heart of England NHS QBD _ 13 October 2016

The claimant was successful in her claim for damages in a clinical negligence claim. During the course of negotiations regarding recovery of the claimant’s costs, a preliminary issue arose as follows:

“to what extent, if at all, does the costs budgeting regime under CPR Part 3 fetter the powers and discretion of the costs Judge at a detailed assessment of costs under CPR Part 7”.

The Court was asked to consider the relationship between costs budgeting and costs assessment.

The claimant’s position was that if her costs are claimed at or less than the figure approved for that phase in her budget then they should be assessed as claimed, without further consideration. There should only be a reduction where the Defendant can prove a good reason to depart from the budget.

The defendant’s position was that the costs Judge’s discretion is not fettered by the budget figures and the budget is just one factor to be considered in determining reasonable and proportionate costs.

The Court examined CPR Parts 44, 47 regarding detailed assessment and 3 regarding budgeting. They found that the purpose of approving and/or agreeing costs budgets is to set a limit on recoverable costs subject always to the ordinary principles of costs assessment. Costs budgeting does not replace the detailed assessment process, or the requirement of reasonableness and proportionality. Budgeting and detailed assessment perform different functions and there is no inconsistency between them in real terms. Budgeting is a case management tool to set the landscape of a claim. Detailed assessment is the closer examination of that landscape at the conclusion of a claim.

The Court therefore concluded that the powers and discretion of the costs Judge at detailed assessment are not fettered by the budgeting regime, save that the budgeted figures should not be exceeded unless there is a good reason.