And the last enemy to be destroyed shall be Death

Capacity to make a contract arises as in issue in costs disputes, when a paying party wishes to dispute the validity of a retainer, on the basis that it is void or unenforceable because the client lacked capacity to enter into it.

The point has been thoroughly ventilated in the context of persons who lack mental capacity, and also minors, but there are other types of incapacity.

A particular point that arises from time to time, in costs claims made by the administrators of an estate or executors who pursue litigation on behalf of a deceased person’s estate or for the benefit of their dependents under the Fatal Accidents Act 1976, is whether the costs they incur under a conditional fee agreement will prove recoverable from a paying party, when the agreement is made before letters of administration are obtained or a grant of probate made. Do they lack capacity at that time?

The question then can be summarised as whether an eventual administrator can make a valid and binding contract, on behalf of a person’s estate before assuming that role through the completion of the appropriate formalities.

Section 21 of the Administration of Estates Act 1925 provides as follows:

Every person to whom administration of the real and personal estate of a deceased person is granted, shall, subject to the limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.

The effect of section 21, if applied widely means that principles which apply to probate cases may also be the same principles which apply to administration cases. It should be noted that the concept of administration is very old, and originally descends from the ecclesiastical courts or Church courts, which in medieval times had jurisdiction over the estates of dead persons. It follows that much of the law on this subject, is antique.

The starting point as he notes, is that the law on nullity of actions, ie proceedings commenced by an administrator before the grant of letters of administration and exemplified by the case of Milburn-Snell v Evans [2011] EWCA Civ 577 has no application to this question, which is whether a contract of retainer can be made in anticipation of an eventual grant of letters of administration. Thus the lack of letters of administration were fatal to a case commenced without them:

16 I regard it as clear law, at least since Ingall’s case, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v Sutton Steam Laundry [1946] KB 65 , 71 (per Lord Greene MR) and Burns v Campbell [1952] 1 KB 15 (per Denning LJ at p 17, and Hodson LJ at p 18). In Finnegan v Cementation Co Ltd [1953] 1 QB 688 , 700 Jenkins LJ said:

“As to the law, so far as this court is concerned it seems to me to be settled by Ingall v Moran and Hilton v Sutton Steam Laundry and, I may add, Burns v Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.”

But this is a rule of law, which applies to the issue of proceedings: it does not provide an answer to the contractual point as to whether a retainer can be lawfully incepted.

Instead one turns to the nineteenth century authorities to see the emergence of a principle of “relation back” which was devised by the courts really to meet the mischief that might arise, in the period between a person’s death intestate, and the issue of letters of administration which might take some time to obtain. This doctrine was expressed in the case of Foster v Bates (1843) 12 Meeson and Welsby 226 and expressly applied not only to actions in tort but also contracts:

[233] It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrong doer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover. All the authorities on this subject were considered by the Court of Common Pleas, in the case of  Tharpe  v.  Stallwood  , (12 Law J. N. S., 241. See also Brooke’s Abr., Relation, 15), where an action of trespass was held to be maintainable. The reason for this relation given by Rolle, C. J., in  Long  v.  Hebb  (Styles, 341), is, that otherwise there would be no remedy for the wrong done. The relation being established for the benefit of the intestate’s estate, against a wrong doer, we do not see why it should not be equally available to enable the administrator to obtain the benefit of a contract intermediately made by suing the contracting party; and cases might be put in which the right to sue on the contract would be more beneficial to the estate than the right to recover the value of the goods themselves. In the present case, there is no occasion to have recourse to the doctrine, that one may waive a tort and recover on a contract; for here the sale was made by a person who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate’s estate; and it was ratified by the plaintiff, after he became administrator: and, when anyone acting on behalf of the intestate’s estate, and not on his own account, means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command; nor is it any objection that the intended principal was unknown, at the time, to the person who intended to be the agent, the case of Hull  v.  Pickersgill  (1 Bro. & B. 282), cited by Mr. Greenwood, being an authority for that position. We are, therefore, of opinion, that the plaintiff is entitled to recover.

(emphasis added)

Indeed there is a chain of nineteenth century authority, which both established the doctrine of relation back, but also started to impose limits on its application. So, for example, the act validated by “relation back” had to be actually done in furtherance of the role as administrator or quasi administrator. Thus in the case of Morgan, Administrator of Thomas Morgan, Deceased v Thomas (1853) 8 Exchequer Reports (Welsby, Hurlstone and Gordon) 302 155 E.R. 1362 it was stated as followed:

Pollock , C. B. I am of opinion that this rule ought to be discharged. Unless the conduct of the party whose [306] act is relied upon as binding the estate of the intestate be done by him in the character of administrator, it can have no operation upon the estate, and, accordingly, the utmost effect that can be given to the defendant’s argument is, that where a party does an act professedly intending to take out letters of administration, and afterwards becomes administrator, the administration has relation back, and gives effect to what he had done by anticipation. But if that proposition be true in point of law, this case would entirely fail upon the facts, for there was no evidence whatever to warrant the jury in finding that the plaintiff had assented. Upon considering all the facts, there is no evidence bearing out the proposition of an assent, although it is true that the plaintiff was living at the time in the neighbourhood, and was probably aware of what the parties were doing, and did not choose to interfere; yet it does not follow that he was acting in the character, or even in the assumed character, of administrator. With respect to the legal consideration of the case, the only matter adduced by the defendant’s counsel, which is in the least in his favour, is what fell from the Court of King’s Bench in Kenrick  v.  Burges  , and which turns out to have been a mere dictum, although, no doubt, the Judges entertained that view of the question. But the modern authorities are opposed to the defendant’s arguments, and, amongst other cases, that of  Woolley  v.  Clark  may be cited.

An act done by a party who afterwards becomes administrator, to the prejudice of the estate, is not made good by the subsequent administration. It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby to prevent it from being prejudiced and despoiled. It was not the duty of the plaintiff, acting in the character of administrator, to assent to a legacy till he had seen all the just debts owing by the estate duly satisfied.

(emphasis added)

The doctrine of relationback has been of crucial importance in more recent times. In the case of Mills v Anderson [1984] Q.B. 704 a purported settlement was made by a person, in advance of the issue of letters of administration, which he then wished to resile from due to a change in the law. The issue was whether the settlement was binding on the estate, because the doctrine of relationback conferred a validity on it, notwithstanding the lack of letters at the time it was made. If it did not, the administrator could resile from the agreement. The decision is a High Court one, so binding:

These being the facts Mr. Potts, on behalf of the plaintiff, made a number of submissions of law based on statements in two textbooks, Williams Mortimer and Sunnicks, Executors, Administrators and Probate 16th ed. (1982) (to which I shall refer as Williams ) and Spencer Bower & Turner, The Law Relating to Estoppel by Representation, 3rd ed. (1977), (to which I shall refer as  Spencer Bower ). These textbook statements were supported by footnotes referring to old cases none of which was or could have been available to counsel and with the consent of both counsel I have subsequently read the cases concerned to ensure that they do indeed support the textbook statements.

In essence Mr. Potts submitted that letters of administration do not in general relate back to the date of death nor can estoppel operate against a party who has changed his legal personality but that letters may relate back where this would operate for the benefit of the estate. The agreement concluded between the parties in the instant case not being of benefit to the estate since the decision of the Court of Appeal in Gammell v. Wilson was indeed upheld by the House of Lords [1982] A.C. 27, the exceptions to the general rule do not apply and consequently the agreement between Mr. Dodgson and Mr. Peacock was not binding on a subsequent administrator.

Williams states, at pp. 91-92:

“Cases may, however, be found, where the letters of administration have been held to relate back to the death of the intestate, so as to give a validity to acts done before the letters were obtained” but *710 “Such relation back exists only in those cases where the act done is for the benefit of the estate.”

This statement is supported by a reference to Morgan, decd. v. Thomas (1853) 8 Exch. 302 and I am satisfied that this decision does indeed support that statement which appears to be taken almost verbatim from the judgment of Parke B., at p. 307:

“An act done by a party who afterwards becomes administrator, to the prejudice of the estate, is not made good by the subsequent administration. It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby to prevent it from being prejudiced and despoiled.”

The fact that relation back does exist in certain cases as an exception to the general rule that it does not is supported by three further statements in Williams , at p. 428:

“It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death in an action of trespass or trover”

And, at p. 429:

“It would also seem that whenever makes a contract with another before any grant of administration, the administration will have relation back, so that the benefit of the contract is not lost and the administrator may sue upon it, as made with himself.” (emphasis added)

The latter being supported by Bodger v. Arch (1854) 10 Exch. 333 which I am satisfied does justify it. I pause here to observe that it is clear from that statement that although letters may not have been granted a person may act “on behalf of the intestate’s estate” and it was therefore perfectly proper for Mr. Peacock to write the letter before action “on behalf of the estate” even though he knew that there was no administrator. The third statement in Williams  is at p. 430: “The doctrine of ‘relation back’ must be applied only to protect the estate from wrongful injury occurring in the interval before grant.” A statement said to be supported by Waring v. Dewberry (1718) 1 Str. 97 and again I am satisfied that it is a statement supported by the ratio in that case.

Subject to a submission by Mr. Fox to which I shall refer below and subject to one possible ambiguity these statements seem to me to support Mr. Potts’s submissions. I have however to consider whether an act done for the benefit of the estate means objectively an act which looking back is of benefit to the estate or whether it may include acts which were done subjectively for the benefit of the estate even though looking back they have not benefited the estate at all. It is perfectly clear that in arriving at his decision to conclude an agreement with Mr. Dodgson, Mr. Peacock believed that he was acting for the benefit of the estate. Indeed had the *711 House of Lords in Gammell v. Wilson [1982] A.C. 27 decided that damages for loss of expectation of life should be a token figure never intended to rise with inflation at all and consequently should have reverted to £250 the agreement would have been of considerable benefit to the estate.

I am satisfied, looking at all the cases as a whole, that relation back only occurs where it would be beneficial to the estate for the general doctrine not to operate. The exception applies to prevent injury to the estate, and in my judgment, the approach should be a purely objective one.

Before turning to the submission of Mr. Fox and for the sake of completeness I turn to consider whether the doctrine of estoppel can apply. Mr. Potts relied on Spencer Bower , ch. VI, para. 127:

“Just as, for the purposes of estoppel by representation, amongst other purposes, there may be a unity of persona (in the strict juridical sense of the word) between two physically distinct individuals, e.g. principal and agent, as has already been pointed out, so, conversely, one and the same person in the physical sense may in contemplation of law occupy two personae or characters, one private, and the other official, in which case, when litigating in the latter capacity, he is not estopped by any representation made by him in the former, and vice versa.”

Again the footnote case, Metters v. Brown (1863) 1 H. & C. 686, fully supports that statement. Channell B. said, at p. 693:

“In Doe d. Hornby v. Glenn (1834) 1 A. & E. 49 which was cited on the argument, it was held that an agreement entered into by an executor de son tort did not bind him after he had become rightful administrator. In our opinion the plaintiff, who sues as administrator of his mother, must be considered in the position of a stranger, and therefore the rule as to estoppel does not apply; for whenever a person sues, not in his own right, but in the right of another, he must for the purposes of estoppel be deemed a stranger.”

I am consequently quite satisfied that the plaintiff in this case cannot be estopped from denying the validity of an act done by him in relation to the estate before he became administrator.

This latter doctrine was not challenged in principle by Mr. Fox who nevertheless submitted that in the circumstances of this case the doctrine did not apply; nor did he challenge the general validity of the submissions made by Mr. Potts. In an ingenious argument however he submitted that where there was an agreement concluded between parties one of whom later became an administrator and where the agreement was such as would permit the administrator to sue upon it, the contract could then be used by the other party as a shield even though he could never use it as a sword.

There is no doubt in my mind that Mr. Fox’s first premise is justified. Let us suppose that before any act were done by the plaintiff, subsequent to letters of administration, to deny the validity of the contract, a witness had been discovered who wholly exonerated the defendant from all blame *712 for the death of the deceased. The plaintiff could successfully have sued upon the agreement. So, submits Mr. Fox, it would be wholly anomalous if in such circumstances the defendant could not, in answer to a claim, set up the same agreement as a defence.

This argument merits careful consideration but I can find nothing in the two textbooks or in the cases which supports it. In the light of the decision in Gammell v. Wilson [1982] A.C. 27 the agreement concluded by both parents purportedly on behalf of the estate was not of benefit to it. The judgment at first instance in Gammell v. Wilson which the House of Lords later affirmed as good law was given on 27 July 1979 which not only preceded the agreement but also the death itself. The judgments in the Court of Appeal were delivered on 1 April 1980 which also predated the agreement. It cannot be said therefore that even at the date of the agreement it was of benefit to the estate. I do not therefore have to consider the position which might arise if the act done was, at the time of its performance, of benefit to the estate but as a result of supervening events including decisions of the courts had later become injurious to the estate.

In these circumstances I have reached the conclusions first, that this agreement was not concluded on behalf of the estate by the administrator; second, that the doctrine of relation back does not operate to bind him as administrator; and third, that as administrator he is not estopped from denying the validity of an agreement entered into by him on behalf of himself and his wife; and I consequently hold on the preliminary issue that the defendant has not made out the averment of accord and satisfaction.

I regard this decision as most important: it indicates modern acceptance of the doctrine that relation back applies to contracts made by an administrator, who is not, in fact an administrator at the time they are made provided that the contract is for the benefit of the estate, as objectively assessed.

Accordingly, looking at the nineteenth century cases, and also the decision in Mills it can be convincingly argued that a conditional fee agreement  drafted to take effect between the solicitors, and the person who intended to become the administrator and did indeed become the administrator, will be valid, and not void for want of capacity.

 

Costs budgeting after Harrison II

The second issue that was debated in the case of Harrison v University Hospitals and Coventry and Warwickshire NHS Trust [2017] EWCA Civ 792 was described in these terms:

3. The second issue is whether, with regard to costs incurred prior to the budget (“incurred costs”), there is or is not a like requirement of good reason if a costs judge on a subsequent detailed assessment is to depart from the amount put forward at the relevant costs management hearing.

The origins of this issue can be found in what might now be termed “the Sarpd Oil” heresy: this was a belief that gained some traction after obiter remarks by Sales LJ in the case of that of that name, that unless incurred costs were challenged at the costs and case management hearing, they were to be taken as drawn. This in turn led to lengthy recitals in costs management orders that the issue of incurred costs had specifically not been considered at the costs and case management hearing, and in effect, the issue was shunted off to detailed assessment.

The Court of Appeal in Harrison was at pains to state that the issue was to be resolved again, according to the wording of the rules and Practice Direction, applying the conventional canons of construction.

45. Although the second issue to an extent is connected with the first issue it seems to me that the same process of interpretation – that is, giving the wording of the Rules their natural and ordinary meaning – again indicates a clear outcome: this time, in favour of the appellant.

46. The starting point is this. CPR 3.18 (b), in its then form, relates to a departure from “the approved or agreed budget”. But the costs incurred before the date of the budget were never agreed in this case. Nor were they ever “approved” by the CMO. On the contrary the focus of a judge making a CMO is on estimating the costs reasonably and proportionately to be incurred in the future: as the opening words of CPR 3.15 (1) make clear. In undertaking this exercise the court may have regard to costs stated already to have been incurred: and that may in turn impact on its assessment of what may be reasonable or proportionate for the future. But paragraph 7.4 of PD 3E is quite specific: as part of the costs management process the court may not approve costs incurred before the date of the budget costs management conference. What it can do is record in the CMO its comments (if any) on such costs: which are then be taken into account when considering reasonableness and proportionality: a direction now enshrined in the amended CPR 3.15 (4) and CPR 3.18 (c) with effect from 1 April 2017.

47. It follows, in my view, that incurred costs are not as such within the ambit of CPR 3.18 (in its unamended form) at all. Accordingly such incurred costs are to be the subject of detailed assessment in the usual way, without any added requirement of “good reason” for departure from the approved budget.

It should logically be conceptually clear then, that it follows that incurred costs are simply not up for consideration at a costs budgeting hearing, but rather to be dealt with at a detailed assessment.

However this is not the case. Instead incurred costs can be considered at the costs budgeting hearing in two potentially important regards. The first, is that the amount of incurred costs could logically form an important consideration in setting budgeted costs: if, for example disclosure has already been undertaken to all intents and purposes, by the time a costs budgeting hearing takes place, then a very limited amount of budgeted costs might be allowed for disclosure in the disclosure phase. Similar arguments might be raised in relation to other phases.

Secondly, the court can record comments on incurred costs. How useful this would be, is moot. If a district judge, simply records on the order that the incurred costs are “too high”, how does this translate into specific findings or rulings on a detailed assessment? Any comments which can reasonably be recorded on the face of an Order, are likely to be so vague or non-specific as to be meaningless, and not least because in the context of a costs budgeting hearing the court would have only limited material before it, to give any context to highly impressionistic comments.

The issue of proportionality also has to be considered, and the conceptual confusion this might create will be explored below.

The Court of Appeal did firmly put to rest the spectre of Sarpd Oil, in so far as it lingered after the 1st April 2017 amendments to the costs budgeting rules:

50. In reaching his conclusion, the costs judge was clearly influenced by certain obiter remarks of Sales LJ delivering the judgment of the court in the case of Sarpd Oil (cited above) at paragraphs 41-44 of the judgment. That case did not in fact involve a detailed assessment as such but related to an issue on security of costs. I should also note that the budgeted costs in that case had been approved by the judge as part of an agreed CMO. At paragraph 43 Sales LJ indicated in general terms that, where positive comments were made in the CMO as to incurred costs, the receiving party would have the legitimate expectation of being likely to recover such costs if successful in the litigation. That having been said, at paragraph 44 of the court’s judgment it was then said: “Parties coming to the first CMC to debate their respective costs budgets therefore know that that is the appropriate occasion on which to contest the costs items in those budgets, both in relation to the incurred costs elements in their respective budgets and in relation to the estimated costs elements. The rubric at the foot of Precedent H also makes that clear, since it requires signed certification of the positive assertion that “This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.” Similar points were made at paragraphs 47 and 50 of the judgment.

51. One can see that the wording used in Precedent H might tend to support such a view. But it does not accord with the language of paragraph 7.4 of PD 3E or CPR 3.15 or CPR 3.18: nor does it sit comfortably with the expressed entitlement (but not obligation) of the judge conducting the costs management hearing to record comments on incurred costs which, if made, will then be “taken into account” when considering reasonableness and proportionality.

 The Court of Appeal then went onto consider proportionality and indicated that the incurred costs will be considered as part of the round of an overall view on proportionality, to be formed at the end of a detailed assessment. However, if budgeted costs have been set on the basis of what is reasonable and proportionate, in the light of the incurred costs which have already been accrued, one can legitimately ask oneself, what scope might there be in the ordinary case, for a global proportionality deduction?

The answer will depend on the figures in an individual case: where incurred costs are very modest, there might be very little scope: for the budgeted costs forming the majority of the costs will have been expressly set on the basis they are reasonable and proportionate.

Conversely, where the incurred costs are very great, not only might this result in modest budgeted costs being allowed, the scope for a proportionality argument to succeed must be greater: as the reasonableness and proportionality of those costs would be very much up for argument. One can see in this case “good reason” and proportionality arguments being run together.

52. I add that where, as here, a costs judge on detailed assessment will be assessing incurred costs in the usual way and also will be considering budgeted costs (and not departing from such budgeted costs in the absence of “good reason”) the costs judge ordinarily will still, as I see it, ultimately have to look at matters in the round and consider whether the resulting aggregate figure is proportionate, having regard to CPR 44.3 (2)(a) and (5): a further potential safeguard, therefore, for the paying party.

The Court of Appeal concluded that incurred costs and budgeted costs are to be sharply distinguished for the purpose of a costs budgeting hearing, as provided for by the amended rules, and in relation to the former rules, when properly construed.

53. Costs budgeting, to be performed properly, undoubtedly places a real burden on the parties and court. It would potentially greatly extend that burden if incurred costs were to be subjected to the same degree of preparation and appraisal as budgeted costs. One can understand that there are principled arguments which nevertheless could favour such an approach: but there are also competing arguments. At all events, the then and current versions of the Rules and Practice Direction clearly sharply distinguish, for these purposes, incurred costs from estimated budgeted costs. I therefore think, with all respect, that those particular obiter comments of Sales LJ in Sarpd Oil may have gone too far in so far as they suggest otherwise in terms of how costs management hearings are to be approached in this respect.

54. I should add that it seems that those remarks of Sales LJ in Sarpd Oil with regard to incurred costs gave rise to a degree of disquiet. The matter came to the attention of the Civil Procedure Rule Committee. It considered that the consequences of those observations in Sarpd Oil were “unexpected”. It also considered that the effect of those observations would be to complicate, not simplify, costs management and might undermine desirable attempts to agree costs budgets. The outcome of the Report of the relevant sub-committee of 9 December 2016 was to recommend that incurred costs indeed should be “decoupled” from budgeted costs so that the court’s budgeting would only relate to the costs to be incurred (but retaining the court’s power to comment on previously incurred costs, which could provide a “steer” thereafter): thus restoring the position to the perceived status quo ante. This is designed to be made clear beyond argument for the future by the subsequent amendments to CPR 3.15 and CPR 3.18 with effect from 6 April 2017. As will be gathered, I in fact consider, and disagreeing with the obiter remarks of the court in Sarpd Oil, that the status quo ante was in any event to the same effect.

The third and final issue hinged on when a case was commenced for the purpose of rule 44.3(7)(a): the court had little difficulty in deciding that meant when proceedings were issued by the court.

Although the rules are clear, and indeed have been clear in my view since 2013, in their intended effect, the Harrison judgement clarifies the position and confirms the interpretation. To that extent the judgment is a valuable jurisprudential contribution.

What the judgment does not do, and does not purport to do, is address the philosophical contradictions at the heart of the current costs budgeting regime.

In particular, in a world where there is an ever greater impetus to fixed costs, with their settled, if not arbitrary amounts, it could be thought to be puzzling that the rules remain so tender of the notion of incurred costs and their inviolability to control or assessment at an early stage in a case.

Moreover, the provision in the rules for variation of a budget, cuts against the provision of certainty that a costs management order is meant to achieve: if a party’s potential liability for costs can be increased through the raising of a party’ budgeted costs, then a decision made to contest a case, will have been made on the basis of an invalidated premise.

Costs budgeting after Harrison I

The most significant decision in the last four years on costs budgeting was handed down by the Court of Appeal in the case of Harrison v University Hospitals and Coventry and Warwickshire NHS Trust [2017] EWCA Civ 792. This was an appeal from a decision of Master Whalan, made on a detailed assessment.

The only substantive judgment was given by Davis LJ with evident asperity as he plainly wondered why some of the points which were being run were being argued before him: I suspect he had forgotten that counsel do not choose the cases they take on, and often do not choose the points they are asked to argue.

Be that as it may, the issues were described in these terms:

1.This appeal raises issues of some general importance in the context of costs. In particular, the two principal issues are ones which concern the relationship between costs budgeting and detailed assessment and which appear to have attracted sharply divided views among those specialising in this area. Ultimately, they are to be resolved by a process of interpretation of the relevant Rules and related Practice Directions.

2. The first issue can be summarised in this way. Where a Costs Management Order (“CMO”) approving a costs budget has been made in the course of civil proceedings is a costs judge on a subsequent detailed assessment precluded from going below the budgeted amount unless satisfied that there is good reason for doing so? Or is there an entitlement to do so without any prior requirement of good reason for going below the budgeted amount?

3. The second issue is whether, with regard to costs incurred prior to the budget (“incurred costs”), there is or is not a like requirement of good reason if a costs judge on a subsequent detailed assessment is to depart from the amount put forward at the relevant costs management hearing.

4. A third, and entirely discrete, point is also raised. This is as to when, for the purposes of the transitional provisions relating to proportionality contained in CPR 44.3 (7), a case is to be treated as “commenced”.

The actual decision of Master Whalan was summarised as follows:

17. Master Whalan took the view that so far as budgeted costs were incurred CPR 3.18 precluded him from subjecting them to a “conventional” detailed assessment at the behest of the appellant as paying party unless good reason for doing so was shown. (At the same time, however, he indicated that he was receptive to arguments on individual items to the effect that good reason did exist.) As to incurred costs, Master Whalan – to an extent founding himself on some observations of Sales LJ giving the judgment of the court in Sarpd Oil International Limited v Addax Energy SA [2016] EWCA Civ 120, [2016] 2 Costs LR 227 – said that although incurred costs could not themselves have been approved as such at the case management conference nevertheless they would have featured in the overall budget put forward at the conference and thus had a “certain status”. Master Whalan indicated that, with regard to the incurred costs, it was “in practical terms” required that good reason likewise should be shown if there was to be a departure from what was set out in

Precedent H. As to the date when the case commenced, Master Whalan held that in the present case that was when the letter was sent (on 27 March 2013) by a prescribed method which would lead to next-day delivery and so was prior to 1 April 2013. In the result, Master Whalan assessed the recoverable costs at £420,168 (including success fee and ATE premium). He ordered the appellant to pay the costs of the assessment.

I therefore turn to consider the first issue.

The resolution of the first issue for anyone who actually reads the rules and Practice Direction would seem to be “bleeding obvious” as I observed in an earlier post http://costsbarrister.co.uk/uncategorized/the-bleeding-obvious/ in relation to the case of  Merrix but which was approached by the court in the following way:

25. So far as the first issue before us is concerned, that was precisely the point that fell for decision in the case of Merrix, decided on 24 February 2017 by Carr J. There is no room for distinction on the facts: either that case was rightly decided or it was wrongly decided. Mr Latham (of course) said that it was rightly decided. Mr Hutton (of course) said that it was wrongly decided. Certainly it is not a decision binding on this court.

26. Mr Hutton noted that by her decision Carr J had on appeal departed from the decision of a very experienced regional costs judge (A908M096): whose decision at first instance had itself in the interim been followed, albeit “with some hesitation”, by another very experienced regional costs judge in another case (A90LE252).

27. Since the decision of Carr J is reported and readily available to anyone interested in questions of costs I do not propose here to detail her reasoning. She set out fully the background of the proposals of Sir Rupert Jackson; the contents of the relevant Rules and Practice Directions; and the competing arguments of counsel (which in truth appear to have tracked the competing arguments advanced to us). She reviewed a number of authorities cited to her. The core of her conclusion perhaps finds its clearest summation in paragraphs 67 and 68 of her judgment. She considered it plain from the wording of CPR 3.18 that no distinction was made between the situations where it was claimed on detailed assessment that the budgeted figures were or were not to be exceeded. At a later stage, she indicated that she accepted that costs budgeting was not an advance detailed assessment; but, as she put it at paragraph 78, there was no suggestion that there should not be any detailed assessment: “on the contrary, the question is how that assessment should be conducted”.

The Court of Appeal then went on to approve the approach taken by Carr J in the Merrix decision:

28. I am in no real doubt that Master Whalan reached the right conclusion on this issue and that the conclusion of Carr J in Merrix was also correct, for the reasons which she gave.

Davis LJ deprecated the arguments advanced which were said to be supported by various extra-judicial sources:

29. I have to say that I was a bit bemused by some of the aspects of the arguments advanced before us. At times the citation not only of authorities but also of what were described as “extra-judicial documents” almost descended into a kind of arms race in collecting views or comments which might lend support to one point of view with regard to costs budgeting in preference to another. Indeed at one stage we were taken by counsel to a number of comments of Sir Rupert Jackson himself, writing extra – judicially, seemingly with an aim on the part of counsel to extracting some kind of clue as to what he had intended or what he would have intended or what he understood had been intended. This is, with respect, beside the point. What we have to do is construe the wording of CPR 3.18 (produced, no doubt, under the auspices of the Civil Procedure Rule Committee): thus on basic and ordinary principles the legislative intention is to be gathered from the words used. For this reason alone, therefore, I was not much moved by Mr Hutton’s courteous but firm insistence that to understand the rule one has to understand the “realities”; and for that purpose one had, he said, to be at the “coal-face” of costs management decision making (which virtually all appellate and many High Court judges are, I accept, not).

An interesting raised in the course of the appeal, but which the Court plainly thought was neither here nor there, was the whether the degree of scrutiny provided to costs budgets when a costs management order was made, was appropriate.

In years gone by, I recall undertaking detailed assessments lasting three days, where a bill of costs was no more than £150,000. Last year, I undertook a summary assessment of a schedule of costs claiming £140,000 in the Commercial Court, where the costs were assessed within 15 minutes. As is well known, on a provisional assessment of a bill of costs of up to £75,000, the court service allows a costs judge only 40 minutes.

The point is that, a philosophical shift has been adopted by the judges, that rather than spend days or even hours, agonising over a claim for costs they will administer “rough justice” when making decisions.

30. In many ways, Mr Hutton’s submissions in fact came close to an attack if not on the whole principle of costs budgeting then at all events on the efficacy in practice of costs budgeting. That of course has been the subject of extensive debate over recent years. But I do not need to go into the competing arguments – themselves discussed both in, for example, the Civil Courts Structure Review: Final Report of Lord Justice Briggs (2016) and in Sir Rupert Jackson’s own recent book on The Reform of Civil Litigation (2016) – simply because, put shortly, the system is now enshrined in the Civil Procedure Rules. At all events Mr Hutton asserted – and assertion is what it was – that the whole costs management system not only has been but still is “creaking”. He further said that if a CMO were to convey the notion that, for any subsequent detailed assessment, the matter was in effect to be regarded as already determined by the approval of budgets in the CMO then that would cause parties to devote even more time and resources and argument to costs management hearings, to the detriment of the prompt processing of the litigation and at the risk of overwhelming the courts: whereas if all were left to detailed assessment then matters could, he sought to say reassuringly, be assessed fully and fairly and properly by expert costs judges on an itemised basis , and with an informed view of issues such as proportionality.

31. The premise underpinning Mr Hutton’s argument thus was that CMOs in effect are but summary orders which at best give no more than a snapshot of the estimated range of reasonable and proportionate costs: often reached, as Mr Hutton would have it, on a broad brush or rough and ready judicial approach after a hearing which would have been limited in time, rushed in argument and incomplete in the information advanced.

Accordingly a “light touch” approach to costs management can be seen to be very much part of the zeitgeist when it comes to assessing costs and not something that the Court of Appeal regards as objectionable or even out of the norm.

This decision also marks the resurrection of Cook on Costs as an authoritative source of costs wisdom: under the new authorship of Master Rowley and District Judge Middleton, the text has regained its authority, that certainly I think had declined in recent years, as the following passage makes clear from the judgment in Harrison.

32. It is to be noted that this sceptical appraisal, although no doubt shared by some, is not shared by others who undoubtedly can be said to be at the “coal-face”. Indeed, it is roundly said in the latest edition of Cook on Costs (2017 ed, at pages 230-1) that to sanction, at detailed assessment, a departure from the budget in the absence of good reason would overlook (among other things) that budgeted costs are already required to have regard both to reasonableness and to proportionality; that the aims of costs budgeting include a reduction in detailed assessments and of issues raised in points of dispute; and that the element of certainty to clients (in the form of knowing what costs they are likely to face, in terms of payment or recovery) would be removed. As also posed by Master Gordon-Saker in the case of Collins v Devonport Royal Dockyard Limited (8th February, 2017: AGS/1602954), to which we were referred in the written arguments: “… what would be the point of costs budgeting (and the considerable resources it has required) if the resulting figures amount to nothing more than a factor, guidance or cap at detailed assessment?” He rejected in that particular case the argument of the defendant, in seeking on detailed assessment to reduce an agreed budget figure, that an agreed or approved budget was, for the purposes of detailed assessment, nothing more than guidance.

The court did however note that the requirement of proportionality should be specifically addressed, when setting a costs budget: and specifically mentioned the value of the claim.

This could be quite important: in my experience, decisions on costs budgeting in practice chiefly focus on what legal spend needs to be, to complete a phase: when the emphasis in the rules, that costs can be both reasonable and necessary, but still disproportionate might indicate that a better starting point is to look at the overall value of the case, consider what the overall level of costs should be, and then divide the total by phases. But this is not happening in practice.

33. These sentiments are also reinforced by, for example, the requirement that a costs budget has to be signed and certified as being a fair and accurate assessment of the costs which it would be reasonable and proportionate for the client to receive; and by the requirement under the Rules and Practice Directions for revised budgets, upwards or downwards, to be filed and approved where the estimates change. In this regard, it is also in my view particularly important overall to bear in mind that a judge who is being asked to approve a budget at a costs management hearing must take into account, in assessing each budgeted phase, considerations both of reasonableness and of proportionality. Proportionality may be, to give but one example, of particular potential relevance where the costs prospectively claimed are very large and the amount at stake in the claim relatively small.

The Court of Appeal also seems quite relaxed by the concept of a 30 minute detailed assessment: the effect of its ruling should be, to reduce large parts of a detailed assessment to arguments (if there are any) that there is a good reason to depart from an approved costs budget.

34. Moreover, if approval of a costs budget by a CMO has the more limited status which the appellant would ascribe to it then that would have a potentially adverse impact on parties thereafter attempting to agree matters without requiring a detailed assessment. Although Mr Hutton queried if that was one of the perceived prospective benefits of the costs budgeting scheme, it seems to me – as it did to the editors of Cook on Costs – wholly obvious that it was indeed designed to be one of the prospective benefits of cost budgeting that the need for, and scope of, detailed assessments would potentially be reduced.

The nub of the case was that the Court of Appeal decided, unsurprisingly, that on conventional principles of construction, the words of the rules and Practice Direction mean exactly what they say.

35. Against that context, I turn to the critical issue of the actual wording of CPR 3.18 (b). Mr Hutton’s arguments were to the effect that there is a degree of ambiguity in the language used, justifying a purposive approach to its interpretation. Since, for the reasons I have sought to give above, the purposive approach which he advocates rests on very shaky foundations that hardly assists him. But in any event I do not consider there to be any real ambiguity in the words at all.

36. The appellant’s argument has this initial, and unattractive, oddity. If it is right, it involves a most unappealing lack of reciprocity. It means that a receiving party may only seek to recover more than the approved or agreed budgeted amount if good reason is shown; whereas the paying party may seek to pay less than the approved or agreed budgeted amount without good reason being required to be shown. It is difficult to see the sense or fairness in that. Nor does this argument show much appreciation for the position of the actual parties to the litigation – not just the prospective paying party but also the prospective receiving party – who need at an early stage in the litigation to know, as best they can, where they stand: precisely one of the points validly made in Cook on Costs (cited above).

37. The appellant’s argument requires that the word “budget”, as used in the then version of the Rule, merely connotes an available fund. But given that “good reason” is, as conceded, required if the amount claimed on detailed assessment exceeds the approved budget that of itself surely carries with it the notion that the word “budget” comprehends a figure. Moreover, the words “depart from” are wide – or, to put it another way, open-ended. As Mr Latham pointed out, had the intention really been that good reason is required only in instances where the sum claimed exceeds the approved budget then the Rule could easily and explicitly have said so. Further, the Rules in any event provide elsewhere for costs capping cases: it seems odd indeed to include a further variant of costs capping by this route. Yet further, and as indicated above, the appellant’s argument bases itself almost entirely on the perceived advantages to the paying party with scant, if any, regard to the position of the receiving party: who no doubt will have placed a degree of reliance on the CMO. From the perspective of the receiving party it is all too easy to see that the paying party is indeed seeking to “depart from” the approved budget in endeavouring to pay less than the budgeted amount.

38. There is also nothing, in my view, in CPR 44.4 (3)(h) to tell against this interpretation. In fact, to read that sub-rule as requiring the approved or agreed budget to be considered only as a guide or factor and no more would involve a departure from the specific words of CPR 3.18. In this respect, it is in fact to be noted that the words of CPR 3.18 (a) positively mandate regard to the last approved or agreed budgeted cost for each phase of the proceedings. The two Rules are perfectly capable of being read together.

39. Consequently, since the meaning of the wording is clear and since it cannot be maintained that such a meaning gives rise to a senseless or purposeless result, effect should be given to the natural and ordinary meaning of the words used in CPR 3.18. In truth, that natural and ordinary meaning is wholly consistent with the perceived purposes behind, and importance attributed to, costs budgeting and CMOs.

40. Such a conclusion also accords with authority (albeit none binding on this court): not only in the form of the decisions in Merrix and Collins but also in the form of the remarks of Coulson J in McInnes v Gross [2017] EWHC 127 (QB). In that case, in the context of considering an interim payment on account of costs, Coulson J in terms said, at paragraph 25, that the significance of CPR 3.18 “cannot be understated” and meant that, where costs are assessed, the costs judge “will start with the figure in the approved costs budget.” He roundly rejected the argument of the paying party that detailed assessment “will start from scratch.” I agree with those observations of Coulson J.

43. I therefore consider that, overall, the costs judge was right in his conclusion on this particular point.

The Court of Appeal then declined to give guidance on what is a “good reason”, in the sense of listing even illustrative examples of what might be a good reason for a departure from the budget. This is to be welcomed. It now gives a blank canvass to costs lawyers upon which they can paint a masterpiece, to argue that any number of scenarios, constitute a “good reason” to depart from the budget.

Obvious ones, include the non-completion of a phase, the value of a case budgeted on certain assumptions, collapsing at trial, or something akin to an “unknown unknown” arising during the course of the litigation. However a practical constraint on these arguments, may well be the facility to have a budget varied, should unforeseen consequences arise. The facility to vary a budget, does generate a tension with the concept that the budget sets the parameters of costs incurred in a case from start to finish.

44. Further, Mr Hutton’s argument seemed to me to have two potential wider weaknesses. First, aspects of it seemed to be almost asserting that unless the Rules were interpreted as he argued a CMO approving a budget would operate in effect to replace the detailed assessment. That clearly is not right: as Carr J pointed out in Merrix. The effect, rather, is as to how the detailed assessment is conducted. Second, and linked to the first point, the whole argument, in my opinion, tends to downplay the significance of the “override” built into the wording of CPR 3.18 (b). Where there is a proposed departure from budget – be it upwards or downwards – the court on a detailed assessment is empowered to sanction such a departure if it is satisfied that there is good reason for doing so. That of course is a significant fetter on the court having an unrestricted discretion: it is deliberately designed to be so. Costs judges should therefore be expected not to adopt a lax or over-indulgent approach to the need to find “good reason”: if only because to do so would tend to subvert one of the principal purposes of costs budgeting and thence the overriding objective. Moreover, while the context and the wording of CPR 3.18 (b) is different from that of CPR 3.9 relating to relief from sanctions, the robustness and relative rigour of approach to be expected in that context (see Denton v TH White Limited [2014] EWCA Civ 906, [2014] 1 WLR 3926) can properly find at least some degree of reflection in the present context. Nevertheless, all that said, the existence of the “good reason” provision gives a valuable and important safeguard in order to prevent a real risk of injustice; and, as I see it, it goes a considerable way to meeting Mr Hutton’s doomladen predictions of detailed assessments becoming mere rubber stamps of CMOs and of injustice for paying parties if the approach is to be that adopted in this present case. As to what will constitute “good reason” in any given case I think it much better not to seek to proffer any further, necessarily generalised, guidance or examples. The matter can safely be left to the individual appraisal and evaluation of costs judges by reference to the circumstances of each individual case.

In short, detailed assessment has not been abolished: its utility remains, but what perhaps Harrison will do through the resolution of this first issue, is recast the arguments from ones of reasonableness of incurring a particular item of costs, to arguments as to “good reason” to depart from figures which were floated and set at the start of the case.

Summer’s lease

After several excellent weeks windsurfing in Croatia, I have returned to the usual mountain of “stuff to do”, coupled with the sense that summer is already waning and soon will slip into autumn.

In addition there have been a large number of interesting developments in the fields of costs and litigation funding over the last few months, some of which I will be exploring over the next couple of months.

My series of autumn lectures begins on 16th October, with a presentation at the Law Society on the vexed topic of costs budgeting as part of the Society’s Commercial Litigation Conference: full details of the event can be found here, together with the facility to book tickets:

https://events.lawsociety.org.uk/ClientApps/Silverbear.Web.EDMS/public/default.aspx?tabid=37&id=1798&orgId=1&guid=a6e578ff-241b-4135-afd2-48e87d14cf49

A snip at £210.

One of the matters I shall be discussing in the lecture is the recent case of Harrison v University Hospitals and Coventry and Warwickshire NHS Trust [2017] EWCA Civ 792 which for the foreseeable future will set the course of costs budgeting.

My next few posts on this blog will therefore consider certain aspects of the judgment of the Court of Appeal and the ramifications for the practice of costs budgeting.

I am now also taking bookings for my autumn lecture tour to solicitors firms.

If you would like me to come to your firm to speak, I have two seminars which I deliver on “Retainers, clients and costs” and “A conversation on costs” and would be pleased to discuss matters further with you.

 

Inquest costs

An old chestnut that still leaps out of the flames from time to time, is the question of to what degree (if at all) can the cost of preparation for and attendance at an inquest be recoverable in subsequent civil proceedings for the negligently caused death of the deceased.

The question arises particularly frequently in claims against the NHS (for understandable reasons) but can arise as part of the costs in any claim under the Fatal Accidents Act 1976.

Some years ago when the principle of proportionality had been reformulated into its post 1st April 2013 wording, and the sheen had not worn off,  I persuaded a costs judge that no inquest costs at all were recoverable: as the existence of a pre-action protocol for clinical negligence, the provision of written evidence by the coroner and correspondence with the NHS made it both unreasonable and disproportionate for any inquest costs to be  recovered at all.

In truth when considering these arguments a wider principle is in play, namely to what extent can the costs of other proceedings be recovered under a costs order made in narrowly prescribed civil proceedings?

The point can arise when considering proceedings taking place extra-territorially, or subsequent to a public inquiry or given the wide scope of the word “proceedings” which varies according to the context in which it is used, post Plevin, when it might be capable of arguing that costs incurred against one Defendant, might be recoverable from another Defendant notwithstanding the absence of a Bullock or Sanderson order.

A costs Order or deemed costs Order  has its source in section 51 of the Senior Courts Act 1981. Section 51 provides as follows:

(1)       Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—

(a) the civil division of the Court of Appeal;

(b) the High Court; and

(c) any county court,

shall be in the discretion of the court.

Accordingly when the court considers what are the costs of the proceedings it does so on the basis that it considers the costs “of and incidental” to the proceedings: see Roach and Matthews v The Home Office [2009] EWHC 312 (QB) at paragraph 21.

Per the decision in Roach the costs of separate proceedings (in that case an inquest) can be recoverable in the instant proceedings where there is a costs Order providing they meet the criteria set out in Re Gibson’s Settlement Trusts [1981] 2 WLR 1, of proving of use and service in the action; of being of relevance to an issue; or being attributable to the paying parties’ conduct. As Davis J noted in Roach:

The final reported case, on this aspect of the argument, to which I was referred was the decision of Clarke J (as he then was), sitting with assessors, in The Bowbelle [1997] 2 LL.Rep. 196: the report as placed before me containing neither headnote nor list of cases cited. That case involved a review of costs arising out of the tragic collision in the River Thames in 1989 between the Bowbelle and the Marchioness, in which 51 people died. One of the items claimed was the costs of attending the inquest. Clarke J at p.207 referred to re Gibson’s Settlement Trusts and to the three strands of reasoning (described as “three prongs”) there set out. Clarke J rejected an argument on behalf of the paying parties that no costs of the inquest were recoverable. Clarke J did hold that not all the costs of attending the full inquest could fairly be regarded as of and incidental to civil proceedings against the shipowners: because negligence had by then been conceded. Likewise, he said that no costs relating to the cause of the collision (which the claimants wished to be investigated with a view to possible criminal proceedings) could be regarded as costs of and incidental to the proceedings against the shipowners. Clarke J went on, however, to say this:-

“However, it does not follow that no costs of attending the inquest are recoverable. In the event, when the inquest was opened, the Director of Public Prosecutions delivered a notice of intention to prosecute the master of Bowbelle so that the coroner did not proceed with an inquiry into the causes of the collision. The inquest which took place at that time dealt with identification of the deceased, where they were found and the causes of death. The steering committee attended the inquest through Counsel, who was Mr Haddon-Cave. Master Hurst held that it was reasonable for the steering committee to take that step in order to help to establish what pre-death pain and suffering had been endured by those who lost their lives. A forensic pathologist was called in the case of each of the deceased and he was cross-examined by Mr Haddon-Cave on behalf of the steering committee. Master Hurst held that it was reasonable for the steering committee to co-ordinate the claimants, to instruct Counsel and to attend the inquest. I agree. That evidence was potentially relevant to the loss of life claims. It follows that, unless there are particular costs which are not fairly referable to the attendance at the inquest for that purpose, reasonable costs of attending the inquest are in my judgment recoverable. At present there is no basis for holding that Master Hurst’s approach to the figures was in any way wrong.”

And:

The same approach, in effect, was, as I see it, taken in the Contractreal case and explains why Arden LJ stated that, if the costs of the proceedings in respect of the service charge were recoverable as costs of and incidental to the proceedings for recovery of the rent arrears, it would be a case of “the tail wagging the dog” (paragraph 36): the costs were not “subordinate” to the costs of the action (paragraph 41). I appreciate that in some passages Arden LJ possibly refers to the quantum of costs so claimed as indicative of whether or not such costs might or might not be “incidental”. But I do not think Arden LJ was seeking to set out any general rule to the effect that where costs of prior proceedings are very great compared to the sum of money claimed in or costs of subsequent proceedings to which they are said to be incidental, then such costs, or part of them, can never be recovered as “incidental” costs purely on quantum grounds alone. Moreover, it may be repeated that in that case one of counsel’s arguments was that costs in one set of proceedings could never be “incidental to” costs of other proceedings (relying in particular on the Court of Appeal’s decision in Aiden Shipping). If that proposition – which in essentials is that now of Mr Morgan – was correct, it would have been a short route to the Court of Appeal’s conclusion. But self-evidently, by its reasoning, the Court of Appeal did not adopt that proposition. Thus Contractreal was, as was Envoy Farmers, a decision by reference to its own facts.

Accordingly, I am not bound by authority to accept the proposition for which Mr Morgan argued; and I do not think the general principle for which he argued can be extracted from the cases. Since I can see no other convincing rationale for such a proposition, I can see no other basis for restricting the operation of the wide language of section 51 itself and the extent of the Court’s jurisdiction. Nor does this leave a paying party without protection in such a case. On the contrary, the paying party has the protection of the evaluative assessment powers conferred by the statute and subordinate rules on the Costs Judge.

In many cases involving clinical negligence each of the three disjunctive prongs can often be said to be satisfied. A claimant has to investigate a claim. The same exercise of obtaining and considering this evidence, would have been relevant and necessary as it would be  relevant to the issue of negligence on the part of the and ultimately the incurrence of the inquest costs could be said be due to the conduct of the defendant.

However, although some inquest costs are usually recoverable, that does not mean that the costs judge will allow the costs of Leading Counsel, junior and solicitor in attendance at an inquest under full sail, or substantial amounts for preparation time. Often awards can be quite modest, not least because the modern inquest has moved on considerably in procedural terms over the last 15 years: for a good example of the arguments in action see the decision of Master Rowley in the case of Lynch v Chief Constable of Warwickshire Police 14th November 2014 SCCO Master Rowley.

American Gods

You’d have hope. Rebellions are built on hope.

-Jynn Urso.

Like the rest of the country, over the last two weeks I have watched with fascination as yet another Conservative Prime Minister commits political suicide with an ill timed election staged mid term, when a sitting government can expect to be at its most unpopular. Although Mrs May may not quite be a “dead woman walking” in Mr Osborne’s charmless and unchivalrous phrase, her political days are plainly numbered.

At the time of writing, she is being slowly crucified by the Tory Press, anxious now to see her gone, and for the Clown Prince, Mr Johnson, to inherit her Iron Throne. Perhaps of most significance to the readers of this blog, the Lord Chancellor of 11 months standing has been demoted, and the Ministry of Justice must now endure with baited breath the appointment of yet another non-lawyer to deal with an overflowing intray of initiatives, including the modernization of the courts, a huge IT initiative, prison reform and last but not least the vexed question of costs reform.

In a sense, the recent political ructions were profoundly predictable. This country has endured nearly a decade of austerity and is now a much more unequal nation, patently not at ease with itself.

Mrs May with her dementia tax, her talk of grammar schools (for the few, not the many) and a free vote for fox hunting, massively misjudged the political mood.

Mr Corbyn in contrast offered to end university tuition fees: the electorate did not blanch.

He offered to nationalise our shambolic railways: the electorate did not flinch.

He offered to pay for social care in old age, by amongst other measures increasing corporation tax.

And the electorate grew thoughtful.

But I digress from the subject of costs.

It is to the latter, that this blog in its determinedly apolitical stance now turns.

It seems to me that of the various costs initiatives and reforms currently underway, those which are deemed necessary by the Civil Service and which do not require primary legislation are likely to survive, those which are seen as superfluous or which require primary legislation, will like the grammar school initiative and a return to fox hunting with hounds be quietly placed in the circular filing cabinet to await kinder days.

Accordingly, I would predict that the issue of fixed costs in clinical negligence cases is likely to proceed, just as reform of the discount rate is likely to proceed because the government or rather HM Treasury is intimately concerned with these reforms as a compensating body.  Moreover no primary legislation is likely to be required for clinical negligence fixed costs.

Further and equally, the Jackson review into fixed costs is likely to bear fruit next month: no primary legislation is likely to be required as the statutory powers are contained in the Senior Courts Act 1981 to make rules on costs.

But the whiplash reforms, I would tentatively suggest are in trouble. Any primary legislation in this field is likely to prove contentious, and I suspect that the embattled Tory minority government has more important and bigger fish to fry. So it may yet be that the reforms which would decimate the road traffic market, simply will not come to pass, in the foreseeable future.

The Small Claims Track limit may yet rise, as that does not require primary legislation: but without the cuts in levels of damages, contemplated by statutory prescription of awards for whiplash injuries, I predict solicitors will simply move to a contingency based arrangement taking 25% of damages in road traffic personal injury claims, in the Small Claims Track, and in a sense it will be business as normal.

If only.

QUOCS and NIHL claims

One of the points yet to be argued in relation to the QUOCS regime, is its application to a  scenario involving multiple Defendants. It is commonly  in NIHL claims that a Claimant will start proceedings against half a dozen Defendants and recover damages against some of them and either discontinue or lose against the remaining Defendants who will then become entitled to their costs.

In particular, the question that then arises is to what extent is it open to a winning Defendant to recover its costs out of the Claimant’s pot of damages obtained from the losing Defendants? The answer may be that the winning Defendant can’t and simply has to stand its own costs.

The starting point is that the purpose of the QUOCS scheme is to hold a losing Claimant  “harmless” from the enforcement of a costs Order made in a winning Defendant’s favour, save for certain limited exceptions, of which the only material one in a case uncomplicated by fundamental dishonesty is likely to be that of set off against a Claimant’s damages.

The QUOCS scheme has its conception in the former Legal Aid Acts and the Access to Justice Act 1999. A detailed exposition of its origins lies in the Review of Civil Litigation Costs: Final Report (December 2009): see chapters 9 and 19. The availability of set off of a Defendant’s costs against a Claimant’s damages where the Claimant had a Legal Aid certificate was canvassed in cases such Lockley.v.National Blood Transfusion Service [1992] 1 WLR 492.

In that case Scott LJ observed:

In my judgment, the following propositions can be stated.

(1) A direction for the set-off of costs against damages or costs to which a legally aided person has become or becomes entitled in the action may be permissible.

(2) The set-off is no different from and no more extensive than the set-off available to or against parties who are not legally aided.

(3) The broad criterion for the application of set-off is that the plaintiff’s claim and the defendant’s claim are so closely connected that it would be inequitable to allow the plaintiff’s claim without taking into account the defendant’s claim. As it has sometimes been put, the defendant’s claim must, in equity, impeach the plaintiff’s claim. *497

(4) Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of the equitable criterion I have endeavoured to express. It was treated by May J. in Currie & Co. v. The Law Society [1977] Q.B. 990 , 1000, as a “question for the court’s discretion.” It is possible to regard all questions regarding costs as being subject to the statutory discretion conferred on the court by section 51 of the Supreme Court Act 1981 . But I would not have thought that a set-off of damages against damages could properly be described as a discretionary matter, nor that a set-off of costs against damages could be so described.

(5) If and to the extent that a set-off of costs awarded against a legally aided party against costs or damages to which the legally aided party is entitled, cannot be justified as a set off (i) the liability of the legally aided party to pay the costs awarded against him will be subject to section 17(1) of the Act of 1988 and regulation 124(1) of the Regulations of 1989; and (ii) the section 16(6) charge will apply to the costs or damages to which the legally aided party is entitled.

Applying these principles to the respective orders made by the district registrar and by Mars-Jones J., I conclude that neither can be criticised. In general, in my opinion, interlocutory costs incurred in the progress of an action to trial and ordered to be paid by a plaintiff to a defendant would in equity impeach the right of the plaintiff to recover from the defendant costs of the action ordered to be paid by the defendant. A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification. I would expect a party objecting to the set-off to give some special reason for the objection. It is, in my opinion, less obvious that a set-off of costs against damages would always be justified.

It will be noted that the essence of a set off is that that there are cross claims between the Claimant and the same Defendant, which predicate a netting off of liability: the notion that a Claimant’s entitlement in damages from one Defendant should be credited to another Defendant’s entitlement to costs is wholly alien to the concept of set off, which is based on a mutuality of liabilities.

It follows that the argument that a winning Defendant should be able to attach a pot of damages obtained from another party altogether, involves a counter intuitive argument that the statutory scheme of set off permitted by the QUOCS provisions in part 44 CPR has created a wholly new legal principle, which is not properly described as set off at all.

Various terms are used in the rules whose meaning must be carefully considered in this context. Rule 2.3 defines a claimant as a person who makes a claim. It defines claim for personal injuries as meaning proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death.

The rule further defines a statement of case to mean a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim or reply to a defence. A “claim” is not the claim form, nor even the proceedings before the court, but rather the individual demand by a particular person for damages which is included in proceedings.

Each claim will generate its own costs liability: eg in  proceedings where there are six defendants there will be six claims, contained in a single claim form. There could equally have been six claim forms, each containing one claim against a specific Defendant. The liability for costs as between the Claimant and each Defendant would be determined as separate exercises of the discretion and separate costs Orders would be made in respect of each claim.

The word “proceedings” has an elasticity of meaning. A recent restatement of authority and the correct approach to determining what parts of an involved piece of litigation are separate proceedings for the purposes of costs is to be found in the case of Plevin v Paragon Personal Finance Limited [2017] UKSC 23.

In that case Lord Sumption observed at paragraphs 18 to 20:

18. It is clear that for some purposes the trial and successive appeals do constitute distinct proceedings. In particular they are distinct proceedings for the purpose of awarding and assessing costs: see Masson, Templier & Co v De Fries [1910] 1 KB 535, 538-539 (Vaughan Williams LJ); Wright v Bennett [1948] 1 KB 601; Goldstein v Conley [2002] 1 WLR 281, at paras 79 (Clarke LJ), 107 (Sir Anthony Evans). The authorities were helpfully reviewed by Rix LJ in Hawksford Trustees Jersey Ltd v Stella Global UK Ltd (No 2) [2012] 1 WLR 3581. In that case, the Court of Appeal held that for the purpose of section 29 of the Access to Justice Act 1999, the costs incurred in respect of an ATE premium were recoverable only in the proceedings to which the policy related, ie as part of the costs of the trial if the policy related only to the trial, and not as part of the costs of the appeal. In Gabriel v BPE Solicitors [2015] AC 1663, para 16, this court applied the same principle when holding that a trustee in bankruptcy, by prosecuting an appeal to the Supreme Court, did not expose himself to liability for the costs of the distinct proceedings conducted by the bankrupt at trial or on appeal to the Court of Appeal.

19. However, “proceedings” is not a defined term in the legislation, nor is it a term of art under the general law. Its meaning must depend on its statutory context and on the underlying purpose of the provision in which it appears, so far as that can be discerned. The context in which the word appears in section 46(3) of LASPO is different and so, in my judgment, is the result.

20. The starting point is that as a matter of ordinary language one would say that the proceedings were brought in support of a claim, and were not over until the courts had disposed of that claim one way or the other at whatever level of the judicial hierarchy. The word is synonymous with an action. In the cases cited above, relating to the awarding or assessment of costs, the ordinary meaning is displaced because a distinct order for costs must be made in respect of the trial and each subsequent appeal, and a separate assessment made of the costs specifically relating to each stage. They therefore fall to be treated for those purposes as separate proceedings. The present issue, however, turns on a different point. The question posed by section 46(3) of LASPO is whether the fact of having had an ATE policy relating to the trial before the commencement date is enough to entitle the insured to continue to use the 1999 costs regime for subsequent stages of the proceedings under top-up amendments made after that date. The fact that costs are separately awarded and assessed in relation to each stage does not assist in answering that question.(emphasis added)

It follows that for the purposes of costs, the making of a costs Order divides the stages of litigation into separate proceedings: it defines the scope of what are the relevant proceedings.

Where a costs Order is made in favour of a Defendant and the costs liabilities in the other claims in the proceedings were determined by other Orders it can be seen that the relevant proceedings for application of the QUOCS rules, are the claim against the  Defendant which led to the costs Order in its favour which for the purposes of costs is to be treated as separate proceedings.

Section II of part 44 CPR applies the scheme of QUOCS. Rule 44.1

(1) This Section applies to proceedings which include a claim for damages

(a) for personal injuries;

(b) under the Fatal Accidents Act 19767; or

(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 19348,

but does not apply to applications pursuant to section 33 of the Senior Courts Act 19819or section 52 of the County Courts Act 198410 (applications for pre-action disclosure), or where rule 44.17 applies.

(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.

Rule 44.14 CPR provides as follows:

44.14

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

The effect of this rule is to permit the Defendant to set off a costs Order (once the costs have been agreed or assessed) made in its favour as against any order for damages and interest made in favour of the Claimant. See rule 44.12 CPR for a like provision which permits set off in respect of costs.

Rule 44.15 provides:

Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that –

(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b) the proceedings are an abuse of the court’s process; or

(c) the conduct of –

(i) the claimant; or

(ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct, is likely to obstruct the just disposal of the proceedings.

Rule 44.16 provides:

 (1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.

(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where –

(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or

(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.

(3) Where paragraph (2)(a) applies, the court may, subject to rule 46.2, make an order for costs against a person, other than the claimant, for whose financial benefit the whole or part of the claim was made.

The detail of the QUOCS rules was refined when the Civil Procedure Rules Committee drafted the provisions, consequent to further work undertaken by the Civil Justice Council. In its Response To Ministry of Justice Commissioning Note entitled “Implementation Of Part 2 Of The Legal Aid, Sentencing And Punishment Of Offenders Act 2012: Civil Litigation Funding And Costs – Issues For Further Consideration By The Civil Justice Council” June 2012 it had this to say about QUOCS and discontinuance in paragraphs 90 to 94:

90. Again, we start with the position as stated in the MoJ’s Commissioning Note, which is that QOCS protection will be allowed in claims that are discontinued during proceedings and for appeal proceedings. This is straightforward and was generally agreed by the group when it first considered the points.

91. The policy as set out by the MoJ would amount to a substantial change to the provisions of Part 38.6(1) in respect of personal injury claims. At present, this rule provides that:

Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

92. Following initial discussions a difference of views emerged which, in essence, amounted to those representing defendants and insurers arguing that they would face significant risks if QOCS protection were to be allowed as a matter of course in the manner set out in the CN.

93. Those arguments are probably beyond the narrow remit which we were given in the CN and, in any event, were not favoured by a majority. It is nevertheless worth examining the main points which were put forward in support.

94. First, that allowing QOCS protection in claims which are discontinued after proceedings would disadvantage defendants since they would have been put to irrecoverable cost as a result of the now-discontinued claim. That is indeed the case, but the outcome is consistent with the general policy aim of QOCS protecting claimants who are not, in broad terms, successful

The argument that a Claimant might put forward in a scenario where he has won and lost against various Defendants to try to preserve his damages from the losing Defendants is simple.

So far as costs issues are concerned, the claim against a winning Defendant is a separate and distinct set of proceedings. A  costs Order may have been  made in the  Defendant’s favour but the Claimant to the proceedings against the winning Defendant has the benefit of QUOCS, and because within those proceedings no Orders for damages and interest were made in favour of the Claimant against the winning Defendant, there is nothing which can be set off against the Claimant’s costs liability.

The structure of section II of part 44 CPR is sequential. The starting point is to determine what are the proceedings to which rule 44.13 applies. In this context, at the time the deemed costs Order was made in favour of theDefendant, the relevant proceedings for the purposes of costs were the proceedings against the  Defendant per the approach in Plevin.

Rule 44.14 then follows sequentially on from 44.13 CPR. It can be argued that the scope of the enforcement permitted by the rule must be limited to an order for damages or interest made in the same proceedings within which the deemed costs Order is made.

Such a construction is to be preferred to any alternative suggestion put forward by the  Defendant because of the following factors:

(i) The sequential placing of the rule just after 44.13, which defines the scope of QUOCS protection according to the particular proceedings in which there is a claim for personal injuries.

(ii)The express wording of rule 44.14(2) which provides that enforcement can only take place after “the proceedings” have concluded and the costs have been quantified

(iii)The wording of the further exceptions in rule 44.15 where enforcement is only permissible where “the proceedings” have been struck out

(iv) The wording of the further exceptions in rule 44.16 where enforcement is only permissible where “the claim” is tainted by fundamental dishonesty, or there is a mix of claims.

Moreover such a construction accords with the statutory purpose behind QUOCS that (i) absent clear, well defined and limited exceptions a winning Defendant will stand their own costs and (ii) a losing Claimant is able to litigate, being held harmless from costs Orders obtained by a winning Defendant.

Conversely it would be inconsistent to interpret rule 44.14 to allow enforcement where in any proceedings the Claimant recovers a fund of damages and interest from another Defendant that the Claimant is liable to make a payment to a Defendant in separate proceedings.

Such a construction would also avoid a number of absurd and inconsistent results, where for example a Claimant reaches a settlement with some Defendants pre the issue of proceedings, so no Order for damages or interest is ever made, or where the three Defendants are sued in a separate action to three other Defendants possibly some years apart.

It is hard to see why such a hypothetical Claimant should be better off than a Claimant who has chosen to join all the Defendants in one action and hence is a powerful pointer to the construction submitted above.

QUOCS remains one of the more opaque areas of the Civil Procedure Rules and even now, some 4 years on since the implementation of the scheme there are many aspects of the rules which require clarification.

Filling the void

“And so, for these reasons the claim is dismissed.” is not a phrase that either a claimant or a solicitor acting for a claimant under the terms of a CFA will relish hearing at the end of a trial. In such circumstances, the next immediate questions are how any adverse costs Orders and own-client disbursements can be paid. Personal injury claimants will have the benefit of QUOCS, but even so may face a hefty bill for their own disbursements.

It is at this moment that any policy of BTE or ATE insurance effected by the claimant, the latter usually through the agency of his solicitors will come to the fore. But what if the BTE or ATE insurer refuses to pay out, relying on alleged breaches of policy conditions or warranties, or, even more dramatically, fraud by the losing claimant?

What remedies does a client have then? In context it may not just be the client who seeks a remedy. It is the case that many solicitors provide credit to their clients in the first instance by funding their clients’ disbursements, often by way of overdraft. An ATE insurance policy acts as effective re-insurance for the solicitors outlay, obtained at the behest of the solicitors’ bankers.

What follows is an analysis of the key issues that arise at this juncture and what route of challenge might be pursued against a defaulting insurer.

The starting point is that the insured will wish to raise a claim for an indemnity or an action for damages amounting to an indemnity against the insurer, which will be met with a reason or litany of reasons why the insurer is not obliged to pay out on the claim on the policy.

In summary the usual reasons for refusal of indemnity, include misrepresentation at the time of the inception of the policy, non compliance with terms and conditions, subsequent developments in the litigation which the insurer was not informed of, any finding of fraud against the insured made by a trial judge and possibly that the liability incurred is outside the scope of the policy.

Before consideration can be given to whether there is scope to challenge a refusal of indemnity, the first issue that falls to be addressed is whether the solicitor can represent the client in a fresh dispute with the ATE insurer. In many cases there will be a conflict of interests.

A client will usually have obtained their ATE insurance, through the agency of their solicitor, carrying out insurance mediation activities. The policy may be one which gives the solicitor, delegated authority to run the litigation without recourse to the ATE insurer, but often it will not and there will be terms requiring the insurer to give consent to the issue of proceedings, or be notified of material developments in the litigation, or the making of any part 36 offer.

The performance of these obligations will be entrusted to the solicitor: if the insurer’s allegation is that these obligations have been honoured in the breach and not the observance, so that it is contended to be the solicitor’s fault that the insurer has repudiated liability, a clear conflict of interest will arise. The client may well wish to sue the insurer on the contract of insurance, and the solicitor for professional negligence in the alternative.

Another issue that can arise concerns who can bring an action. If the principal sum at stake represents the disbursements which have been paid by the solicitor, and the client has little interest in pursuing the BTE or ATE insurer, perhaps because his liability for adverse costs is covered by QUOCS, the party with the greatest interest in pursuing an action may be the solicitor who is substantially out of pocket by his payment of disbursements.

In this scenario, the solicitor may be able to sue the insurer directly by taking an assignment of the client’s rights under the policy: subject to there being no clause against assignment or arguments of public policy arising from the case of Trendtex Trading Corp v Credit Suisse[1982] AC 679. Sometimes the facts can give rise to arguments that the solicitor may claim for a direct right to an indemnity as happened in Greene Wood McLean LLP (In administration) v Templeton Insurance Limited [2010] EWHC 2679 (Comm) though it should be noted that this arose, when solicitors had discharged clients adverse costs liabilities and could rely both on the principle in Brook’s Wharf & Bull Wharf Ltd v Goodman Bros [1937] 1 K.B. 534 and the Civil Liability (Contribution) Act 1978.

Assertions by insurers that they are entitled to void the policy and their reasons for doing so must be carefully scrutinised. When misrepresentation is alleged, the starting point is that it is trite law that a contract of insurance is a contract of utmost good faith and there is a duty on the insured to provide full disclosure of the facts which are material to the insurer’s risk.

Many ATE contracts will be with insured’s who aptly to be described as consumers, and duty of disclosure is found in sections 2 and 3 of the Consumer Insurance (Disclosure and Representations) Act 2012. If the insured is a business then section 3 of the Insurance Act 2015 imposes a similar obligation upon a business, described as a duty of fair presentation.

If a reason for voiding the policy is given as misrepresentation, it follows that the relevant duty must be identified, and the facts said to constitute a misrepresentation considered, to see whether the insurer can rely on the statutory provisions. A distinction will exist between innocent and fraudulent misrepresentation. In an innocent misrepresentation, the insurer must establish it was material to their decision to insure. No such requirement of materiality applies to a fraudulent misrepresentation. A further requirement is that either type of misrepresentation induced the insurer to make the contract. The key to this task will be to read carefully the written insurance proposal and any accompanying documents sent to the insurer, upon which document they will have based their decision to write a policy and see whether it is full and complete.

Insurance contracts have a different terminology to other contracts and will contain terms that are either warranties or conditions, whereby warranties are the more important of the terms and conditions often, of a lesser significance. Many insurance policies will label the most important terms as warranties. Of the two categories, warranties are the more significant, because of the consequences of breach. A breach of a warranty will render the contract, voidable if it is breached with no liability to pay on the policy at all when voided. There is an obligation is on the insured to comply exactly with the provisions of the warranty.

Conversely, a breach of condition is different in its effect. If a breach of a condition does not result in the loss being sustained, which the policy insures against, then it will not be a breach giving rise to a right of avoidance. Moreover, a breach of condition will constitute a limiting event on an insurer’s liability, but not entitle them to avoid the policy entirely.

Even if an insured is in breach, this is not necessarily the end of the matter: if the insurer can be said to have waived or affirmed the breach, by having knowledge of it, but still continuing with cover and possibly accepting further tranches of premium the insurer will be estopped from being able to rely on the breach. However the courts tend to emphasise both the requirements of actual knowledge of breach on the part of the insurer and clear communication of waiver consequent to that knowledge.

Perhaps the clearest example of a situation where an insurer might wish to avoid the insurance policy, is where the insured has lost at trial due to findings of fraud or dishonesty being made against them. An interesting question arises as to whether these findings between the client and the third party, can be relied upon in themselves, as between the client and the insurer.

In other contexts, where there is a dispute between the third party and the insured and their insurer raises indemnity issues, it is common for the insurer to be joined to the action through a part 20 claim and findings will be made on both the main claim and part 20 claim in one trial.

In the context of a dispute with a BTE or ATE insurer that option will not be realistic as in virtually every case, the dispute only arises after an adverse judgment.

In what is perhaps the leading case on this point, Persimmon Homes Ltd v Great Lakes Reinsurance (UK) Plc [2010] EWHC 1705 Comm Mr Justice Steel had no difficulty in allowing the trial judge’s findings in the original action as evidence, despite the seeming inconsistency with decisions such as Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 which re-emphasised the rule in Hollington v Hewthorn [1943] KB 857 that findings in one civil case are inadmissible in a later civil case.

The cases can perhaps be reconciled on the basis that the insurer and insured are privies and the doctrine of estoppel per rem judicatem precludes the re-opening of the point. In any event, the point may have little practical force if the evidence at the first trial is available, and supportive of a finding of fraud.

Not all circumstances where a client comes under an adverse costs liability will be insured events; it is common for policies to exclude cover for costs awarded when a claim has been struck out, or there has been other default which caused the incurrence of adverse costs. Some policies are barely worthy of the name, because they also exclude a liability to pay adverse costs, where for example a part 36 offer has not been beaten, until any damages or costs the insured may have been ordered to pay have been exhausted in discharging the adverse costs order.

Most policies of ATE insurance will have an arbitration clause: this can be quite a valuable route of redress as an alternative to litigation, not least since the decision in Essar Oilfields Services Limited v Norscot Rig Management PVT Limited [2016] EWHC 2361 (Comm) indicates, that in principle, the cost of litigation funding (and possibly other additional liabilities) might be recoverable. And the strait jacket of costs budgeting and costs management imposed by the courts under part 3 CPR, simply won’t arise.  A further alternative is a complaint to the Financial Ombudsman: http://www.financial-ombudsman.org.uk. As ever, with these forms of alternative redress the eas of making a complaint to the Ombudsman must be weighed against the nature of the dispute and the adequacy of the remedy the Ombudsman might provide.

A version of this article first appeared in the June edition of Litigation Funding magazine and can be found here: Filling the Void.

The quantum foam

Part 45 CPR is an interesting section of the rules, which could be viewed as a kind of parallel universe to the one most lawyers inhabit: analogous to the quantum realm, where universal constants simply do not apply.

In particular the scale of costs prescribed to apply to, for example road traffic accident claims does not depend on the time spent by a solicitor on a case but rather is fixed by reference to other criteria. This can have surprising consequences when considering what costs orders may be open to a judge dealing with a claim governed by fixed costs.

An area of practice which has a particularly high volume of litigation is that of road traffic accident claims involving a claim for credit hire. Many credit hire claims start off under the Portal as part of a larger claim frequently including claims for damages for personal injuries, vehicle repairs or value, loss of earnings and other heads of claim. When a case falls out of the Portal and assuming it is allocated to the Fast Track, it will be subject to the fixed costs provisions of part 45 CPR.

Not infrequently a case will proceed to trial and although the claimant will recover some damages, a credit hire claim can fail in its entirety: perhaps on the issue of need for a replacement vehicle, problems with the enforceability of a credit hire agreement or some other reason.

Often the credit hire claim will be the single largest head of claim, and have identifiable items of costs related to it: disclosure of bank statements and other financial documentation, rates evidence, part 18 requests and reply and so on.

Even if the claimant is successful overall, the defendant may argue that either the costs of the claimant should be reduced, due to the failure of the credit hire element of the claim, or even to recover its own costs of the issue of credit hire. To what extent is this possible, if the case is a Fast Track case and fixed costs are prescribed by part 45 CPR? The answer may be: it isn’t.

Part 45 CPR contains no support for the notion that the court has a general power to make an issue based costs Order by reference to particular heads of loss: in fact it tightly prescribes the costs that can be awarded to either party, limiting a defendant’s potential to recover costs to the circumstances where the defendant has made a part 36 offer or pursued a counterclaim.

This is not to say that success or failure by the claimant on particular issues is not taken account of by the rules: it plainly is, but not in the context of making an order, but rather by the quantification of the costs recoverable by the claimant.

This is a logical approach, given the very modest sums recoverable, the context of QUOCS and the essentially arbitrary nature of the “bright lines” drawn in table 6B on the phases of the claim.

Pursuant to rule 45.29B when a costs order is made in the claimant’s favour, the costs are calculated as being the fixed costs recoverable under rule 45.29C and the reasonable disbursements permitted under rule 45.29I.

Table 6B indicates that where the claim is disposed of at trial, the relevant fixed costs are £2655 plus 20% of the damages awarded plus the trial advocacy fee with the addition of VAT on these amounts.

Rule 45.29I provides a further list of the categories of reasonable disbursements which will be recoverable, with VAT if appropriate.

It will be noted that because the claimant’s costs are calculated by reference to the judgment sum awarded, because the claimant will have been awarded no sums in respect of damages for credit hire, the claimant’s costs have already notionally been reduced by 20% of the damages that might have been awarded: in effect, the claimant has been deprived by the rules, of the costs of that issue.

For the defendant to be awarded a further sum of costs in respect of that issue, would accordingly constitute “double recovery”. Moreover the rules are prescriptive of the amount of costs that a defendant can be awarded: see in particular rule 45.29F.

The limitations are particularly striking: see 45.29F(2) any award of the defendant’s costs cannot exceed the amount that would have been awarded to the claimant at the same stage of the proceedings. The court’s jurisdiction to award any costs to the defendant at all, is prescribed, and predicated upon the notion that the defendant is successful at an identifiable stage of the proceedings.

Thus there is no scope for the defendant to be awarded “assessed costs” of a particular issue as the claimant will have succeeded at each stage of the proceedings, pre-issue, pre-trial and at trial.

In a scenario where there are substantial awards of damages for the claimant for eg: personal injuries and no effective part 36 offer by the defendant, there can be no doubt that the claimant was the winner at each stage of the proceedings.  The claimant will have had to go to trial to recover those damages and incurred the advocacy fee to do so.

See also 45.29G: even had the defendant brought a counterclaim, which succeeded, that would not have disentitled the claimant to his costs of the claim calculated in accordance with rules 45.29C and 45.29I and only nominal costs would have been attributed to the costs of the counterclaim, reflective of the Medway Oil principle.

In summary, as part of the “swings and roundabouts” of part 45 CPR, it can be argued that the court has no power to order the claimant to pay the costs of a failed claim for credit hire itself part of a larger claim: the rules in 45 CPR do not provide for it and the circumstances where the defendant might recover costs (success at an identifiable stage, a part 36 offer, or a counterclaim) do not arise in this case.

The above analysis is underpinned by the general principles which apply to awards of costs in personal injury actions, where a claimant’s claim is reduced at trial, or he fails on certain allegations, or certain heads of claim. Even if the court took the view that it had a wider discretion than is submitted to be the case, it would, not aid the defendant as binding authority indicates that the discretion should not in this context, be exercised in favour of the defendant.

In the case of Fox.v Foundation Piling [2011] EWCA Civ 790 Jackson LJ summarised the position as follows:

From this review of authority I draw the following conclusions. First, where one party makes a Part 36 offer and then achieves a more advantageous result than that proposed in his offer, the provisions of rule 36.14 modify the court’s general discretion in respect of costs. This is important because parties who choose to use the Part 36 mechanism in their settlement negotiations need to have a clear understanding of the legal effects of making, accepting and rejecting offers under Part 36.

Secondly, parties are quite entitled to make Calderbank offers outside the framework of Part 36. Where a party makes such an offer and then achieves a more advantageous result, the court’s discretion is wider. Nevertheless it may well be appropriate to order the party which has optimistically rejected the Calderbank offer to pay all costs since the date when that offer expired. This was what the court ordered in Stokes.

A not uncommon scenario is that both parties turn out to have been over-optimistic in their Part 36 offers. The claimant recovers more than the defendant has previously offered to pay, but less than the claimant has previously offered to accept. In such a case the claimant should normally be regarded as “the successful party” within rule 44.3 (2). The claimant has been forced to bring proceedings in order to recover the sum awarded. He has done so and his claim has been vindicated to that extent.

In that situation the starting point is that the successful party should recover its costs from the other side: see rule 44.3 (2) (a). The next stage is to consider whether any adjustment should be made to reflect issues on which the successful party has lost or other circumstances. An adjustment may be required to reflect the costs referable to a discrete issue which the successful party has lost. An adjustment may also be required to compensate the unsuccessful party for costs which it was caused to incur by reason of unreasonable conduct on the part of the successful party.

In a personal injury action the fact that the claimant has won on some issues and lost on other issues along the way is not normally a reason for depriving the claimant of part of his costs: see Goodwin v Bennett UK Limited [2008] EWCA Civ 1658. For example, the claimant may succeed on some of the pleaded particulars of negligence, but not on others. Indeed the fact that the claimant has deliberately exaggerated his claim may in certain instances not be a good reason for depriving him of part of his costs: see Morgan v UPS. A defendant who has obtained video surveillance evidence is perfectly well able to protect his position on costs by making a modest offer under Part 36.

Nevertheless in other cases (as stated above) the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In Widlake the facts were so extreme that the successful party was ordered to bear all of its own costs.(emphasis added)

There are of course, excellent arguments which could be mounted for a defendant but given the length of this post, I shall have to save those for another day.

And the weak suffer what they must

Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.

-Thucydides

Long term readers of this blog, will know that I maintain a rigid policy of political neutrality, reserving the right to be even handedly offensive about the idiocies of both Conservative and Labour party policy on matters pertaining to access to justice and costs and litigation funding.

In recent years there has been much to be offensive about with the collapse of the absurdly expensive Access to Justice Act 1999 scheme with its recoverable success fees and ATE premiums, and the cheese paring myopic approach of the Legal Aid Sentencing and Punishment of Offenders Act 2012 which has deprived large swathes of the population from access to legal advice and an effective remedy for their wrongs.

One particular bugbear remains that after 1st April 2013 meritorious claims under the Equality Act 2010 for disability discrimination, as well as other claims in areas as diverse as sex discrimination, race discrimination and environmental nuisance have become increasingly difficult to pursue.

Reviewing my archives, I see that in October 2013, I wrote to Maria Miller, the then Minister for Women and Equalities in the Coalition Government in the following terms:

Dear Mrs Miller

Re: Access to Justice for disabled people

I am writing to you, to request that the Government Equalities Office engage with the Ministry of Justice, to ensure access to justice for disabled people.

Specifically, I would ask that you take up with the MOJ, the introduction of a scheme of Qualified One Way Costs Shifting by way of amendment to the Civil Procedure Rules, for disabled people, who wish to bring claims in the county court against organisations that have discriminated against them, in the provision of goods or services, education or the exercise of a public function.

Prior to the 1st April 2013, a disabled person could, under the scheme of the Access to Justice Act 1999, instruct a solicitor to represent them in a discrimination claim, under a conditional fee agreement and obtain protection from having to pay the costs of their opponent, through taking out a policy of After the Event (ATE) insurance.

Due to the Jackson reforms, introduced in the Legal Aid Sentencing and Punishment of Offenders Act 2012, it is no longer possible to recover the cost of this policy, from the losing side to litigation.

This means these policies are no longer available, as practically it is impossible for a disabled person to pay for them.

It means that a disabled person may well  be denied access to justice, as they dare not take proceedings, if there is a chance, however small, that they might not win and have to pay the other sides costs.

These might be substantial and cause the disabled person to lose their home.

A scheme of Qualified One Way Costs shifting has been brought in for personal injury claims and to protect victims of medical negligence.

A further scheme is contemplated for defamation claims.

Disability discrimination claimants are at least as deserving, as victims of defamation, engage in similarly asymmetric litigation and at the moment, unless reforms are undertaken, are at real risk of being denied justice, and the scheme of individual enforcement of rights, contemplated by the Equality Act 2010, will be rendered nugatory.

I await your reply. I am willing to travel to London, to explain matters directly to officials or ministers, as required.

Yours sincerely

Andrew Hogan

I did not receive any reply.

So I sent that letter again.

Still, no reply.

It may be that the Minister had other things on her mind at the time, including the Parliamentary expenses scandal, wherein she had to make a repayment of public monies claimed by way of expenses, and then make a 32 second apology to the House of Commons later, in 2014.

Still in 2017 there is no sign that the shortcomings in the current costs regime, which is an access to justice concern, pertaining to disabled people are likely to be addressed any time soon.

Many people will wonder whether there is any point voting in the forthcoming General Election, given the current likelihood that the Conservatives will simply be re-elected to form a government with a substantial majority and in my case, I note that in the rural part of Nottinghamshire where I live, they tend to weigh, rather than count, the votes of the successful Tory candidate.

The short answer to that query is that before and after 1832 many people have gone to prison, and even died to ensure that we generally have a vote. That we can play some part in steering the course of our political fate.

That we do not have to “suffer what we must”.

For my part I shall study the election manifestoes of all the main parties to see what they have to say about the creaking justice system and what they are going to do about it. I shall cast my vote, when I have seen the evidence.

And after the 8th June, I shall redraft that letter and send it again, to whomsoever is government  and then send it again, and again, until, finally, broken under the strain of persistent correspondence, I do get a response.