Of Costs In Long Running Clinical Negligence Cases | Don’t Just Ask.

RXK v Hampshire Hospitals NHS Foundation Trust [2019] EWHC 2751 (QB)

In a short written judgment Master Cook has endorsed the approach taken by HHJ Robinson in I v Hull & East Yorkshire Hospitals NHS Trust where he overturned the refusal of DJ Batchelor to award the claimant in a long running clinical negligence matter a substantial payment on account of quantum costs.

He emphasised that the application which should be made in these circumstances is for a costs order down to a specific date and an interim payment on account of those costs. With that in mind, he said, it was clear that the court will wish to take into account the factors listed in CPR 44.2 (4) and (5) and would normally expect to be presented with sufficient information to enable it to carry out that exercise.

“it in my view it is important to realise that what HHJ Robinson actually did when allowing the appeal from DJ Batchelor was to make a costs order down to the date of the hearing of the application for an interim payment on account before the District Judge, see paragraphs 23 and 43 of his judgment. This must be right as the wording of CPR 44.2 (8) provides that the court will make an interim payment on account of costs only where it has made a costs order which could be subject to detailed assessment. This is sometimes described as a “prospective” or “anticipatory” costs order, because it has been made before the conclusion of the proceedings, see the commentary in the White Book at 44.2.11.”

He criticised the claimant’s solicitor for failing to adequately address any of the relevant issues and said that her witness statement amounted to little more than a cri de coeur for more money. Offering guidance for future applications, he set out some relevant considerations which he would expect to be dealt with in support:

i) the type of funding agreement and details of any payments made under that agreement,

ii) whether any or other admissible offer has been made, and if so, full details of the offer,

iii) details of any of damages made to date,

iv) a realistic valuation of the likely damages to be awarded at trial,

v) a realistic estimate of the quantum costs incurred to the date of the application,

vi) any other factor relevant to the final incidence of costs, such as the possibility of an issue-based costs order, arguments over rates or relevant conduct.

vii) the likely date of trial or trial window.