The Show Must Go On

Today the long outstanding clinical negligence ATE appeals in the Court of Appeal painfully limped over the line, with judgment being handed down in the conjoined appeals of West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust [2019] EWCA Civ 1220.

Unsurprisingly the Court of Appeal channeled the spirit of Rogers to reach a conclusion that can be simply described as being that block rated ATE premiums “cost  what they cost” and absent a determined challenge from a defendant backed with an expert underwriting report, will be allowed as claimed.

As the number of underwriting experts who offer such reports can be enumerated on the fingers of one hand, that is probably the end of the road, for such challenges. There is more scope to challenge a bespoke premium; there always was even under the Rogers approach, whether by encouraging a costs judge to take a deconstructionist approach to the premium, or by arguing that particular risks were not in fact underwriting risks (which required expert evidence to evaluate) but litigation risks, which a legally trained judge could evaluate. But how many of these ATE premiums are bespoke?

Of wider interest from this appeal, is the approach that the Court of Appeal has taken to the application of the principle of proportionality, in costs assessments generally. As this will affect all cases everywhere, I set out the relevant paragraphs in full below:

87. We are anxious not to restrict judges or force them, when assessing a bill of costs, to follow inflexible or overly-complex rules. One of the matters, however, which is apparent from the many cases cited to us, and from the submissions of counsel on the hearing of these appeals, is that there is an absence of consistency in the way in which costs bills are assessed. Taking the various points made above and drawing them together, we give the following guidance on an appropriate approach.

88. First, the judge should go through the bill line-by-line, assessing the reasonableness of each item of cost. If the judge considers it possible, appropriate and convenient when undertaking that exercise, he or she may also address the proportionality of any particular item at the same time. That is because, although reasonableness and proportionality are conceptually distinct, there can be an overlap between them, not least because reasonableness may be a necessary condition of proportionality: see Rogers at paragraph 104. This will be a matter for the judge. It will apply, for example, when the judge considers an item to be clearly disproportionate, irrespective of the final figures.

89. At the conclusion of the line-by-line exercise, there will be a total figure which the judge considers to be reasonable (and which may, as indicated, also take into account at least some aspects of proportionality). That total figure will have involved an assessment of every item of cost, including court fees, the ATE premium and the like.

90. The proportionality of that total figure must be assessed by reference to both r.44.3(5) and r.44.4(1). If that total figure is found to be proportionate, then no further assessment is required. If the judge regards the overall figure as disproportionate, then a further assessment is required. That should not be line-by-line, but should instead consider various categories of cost, such as disclosure or expert’s reports, or specific periods where particular costs were incurred, or particular parts of the profit costs.

91. At that stage, however, any reductions for proportionality should exclude those elements of costs which are properly regarded as unavoidable, such as court fees, the reasonable element of the ATE premium in clinical negligence cases, and the like. Specifically, therefore, if the ATE premium is assessed as reasonable, it will not fall to be reduced by any further assessment of proportionality.

92. The judge will undertake the proportionality assessment by looking at the different categories of costs (excluding the unavoidable items noted above) and considering, in respect of each such category, whether the costs incurred were disproportionate. If yes, then the judge will make such reduction as is appropriate. In that way, reductions for proportionality will be clear and transparent for both sides.

93. Once any further reductions have been made, the resulting figure will be the final amount of the costs assessment. There would be no further stage of standing back and, if necessary, undertaking a yet further review by reference to proportionality. That would introduce the risk of double-counting.

What this means is two fold. The first is that the practice of looking at reasonableness and then the overall figure, absent such elements as court fees etc is now dead. Instead, proportionality can be applied at the line by line stage of the assessment. Secondly, proportionality is now to be applied not to the overall total of costs in aggregate, but by reference to categories of costs.

Which is astonishing.

Just think about it. The conceptual rasp you hear you hear in your mind, is the sound of a lit match struck, and about to fall into the waiting pool of litigious petrol.

What categories of costs? How are these to be defined? How are these to relate to a phased bill with phases that have been set on the basis the phase totals are reasonable and proportionate?

How does this relate to paragraph 52 in Harrison which states:

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. 

I predict two immediate consequences.

First, the time spent adding up the bill after the assessment (assuming that it is not digital) and then as part of this process devising categories of costs for arguments sake, has now doubled.

Secondly, the proportionality argument which (notwithstanding the recent High Court decision of Mr Justice Marcus Smith) had reached the position of being the untidy spent fag end, of many assessments across the country in the county court, is now potentially very much alight again.

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