In the course of costs negotiations following settlement of liability in this clinical negligence claim the Defendant made a number of Calderbank offers, the last of which being for the sum of £440,000 on condition that if not accepted within a reasonable time, the Claimant would be responsible for the Defendant’s costs.
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Master Brown (costs judge) has joined the debate about the effect of an underspend in a costs budgeted case.
“I agree with [DJ Lumb] that if an underspend were to be a good reason for departing from a budget it would be liable to substantially undermine the effectiveness of cost budgeting. As the Judge effectively observed, solicitors who had acted efficiently and kept costs within budget would find their costs subject to detailed assessment, whereas less efficient solicitors who exceeded the budget would, absent any other “good reason”, receive the budgeted sum and avoid detailed assessment…
“even if ‘underspend’ were a “good reason” for the purpose of CPR 3.18 it does not follow that there should be a deduction from the sums claimed. Plainly, the fact that a party has spent less than its budget for a phase does not mean there is therefore in fact a good or appropriate reason for any further reduction and I was not satisfied that there was any additional “good reason” for any such reduction.”
Relief from sanctions was refused to the second Defendant (“D2”) in this case following the late filing of its costs budget.
Having initially failed to file its budget prior to the CCMC (which was adjourned) D2 then failed to file it less than 21 days prior to the adjourned hearing.
To compound matters, D2 then left it until the day before the adjourned CCMC to file and serve its application for relief.
Finding that there had been “an abysmal approach on D2’s part to conducting this litigation efficiently” HHJ Simon Barker QC refused relief from sanctions result in D2 being treated as having filed a budget comprising only the applicable court fees.
This was an appeal from a decision of Master Nagalingam in which he found that a bill rendered by the solicitors to their former client had not been paid and that “special circumstances” existed such that a detailed assessment, pursuant to section 70 of the Solicitors Act 1974, should be carried out.
Having made findings at trial that the claimant had exaggerated his personal injury claim, specifically in respect of loss of earnings, Mr Justice Farby had to determine if, and to what extent, this should be reflected in the award of costs.
Master Brown (costs judge) declined to award pre judgment interest on the cost of a loan which the Claimant had taken out to fund the expense of an expert medical report in this clinical negligence case.
The Master rejected the notion that the Court in Jeffrey Jones and others v Secretary of State for Energy and Climate Change and others  EWCA Civ 363 had intended to set a general rule that an award of interest on costs should be made in respect of the period before judgment and respectfully agreed with Dingemans J in Schumann and Anor v Veale Wasbrough  EWHC 4070 QB that not only was such an award not the general rule in ordinary litigation and but that it was undesirable that there should be such a general rule.
The topic of inter fee earner discussions arises in most detailed assessments. Many paying parties argue that they are not allowed under almost any circumstances and, historically, these costs are, in most cases, disallowed on assessment, irrespective of whether it led to an ultimate saving in costs by enabling effective delegation of work to lower grade fee earners.
The Court of Appeal has upheld the decision of both Master Rowley (costs judge) and Jay J on appeal to disallow additional liabilities in the form of success fees (for both solicitors and counsel) and ATE premium claimed in the sum of £1,078,972.72.
In November last year the Court of Appeal decided that fixed costs continued to apply in a case which started under the RTA Protocol and was settled by way of the acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to detailed assessment if not agreed”.
As a consequence of that decision the Appellant (original defendant) was awarded her costs of the appeal.
The question to be determined now was whether the court had jurisdiction to set off those costs against the costs owed to the Respondent (original claimant) in the substantive claim.
Another decision on indemnity costs arising from a failure to mediate.