Full Case Details
- The Claimant suffered neurological injury as a result of a profound asphyxial insult at the time of her birth on 9 November 2013 as a result of negligent delay in her delivery.
- Proceedings were issued on 2 November 2016.
- Judgment was entered for damages to be assessed by way of order dated 25 July 2017, which also awarded the Claimant her liability costs to be subject of a detailed assessment if not agreed. This order also provided for interim payments on account of damages in the sum of £100,000 and of costs in the sum of £50,000.
- It was expected to be several years before the claim could be properly quantified.
- In October 2019 the Claimant’s solicitors made an application for a further interim payment on account of costs. This was supported by one paragraph in the witness statement of Ms Bean, the Claimant’s solicitor;
“59. The Claimant also seeks an interim payment on account of her costs in the sum of £150,000 pursuant to the Court’s discretion in CPR rule 44.2. A schedule of costs is exhibited to this statement as exhibit “AB-13 and totals £410,136.88. Interim payments of £100,000 have previously been received (£50,000 in January 2017 and £50,000 in August 2017), and therefore this payment would mean that the total interim payments on account of costs would be £250,000 (just over 60% of the total costs in the costs schedule). I submit that it is likely there will be significant delay before quantum is resolved in this matter (at least 3-4 years, but possibly much longer in uncertain future), by which time costs are likely to be significantly higher, and therefore I respectfully request that an interim payment on account of costs is made at this stage pursuant to the judge’s discretion.”
1. On 3 October 2019 the Claimant’s application for further interim payments on account of damages and costs was listed before me. By the time of the hearing the only live issue was the application for a further interim payment on account of costs.
2. It quickly became apparent that the application had not been presented in the most helpful way and that much of the material essential to determining the application was missing. It also became clear the Claimant was seeking an interim payment on account of quantum costs in circumstances where the only previous order for costs in existence related to liability costs. Rather than simply dismiss the application I adjourned it to enable the claimant’s advisers to put their house in order.
3. Following the publicity given to the decision of His Honour Judge Robinson in the County Court case of [I] v Hull & East Yorkshire Hospitals NHS Trust and the subsequent refusal of permission to appeal by Irwin LJ this sort of application has become common in high value clinical negligence and personal injury claims where there is likely to be substantial delay before quantum can be determined by the court. I am aware that there is no decision of the High Court on the principle of whether such applications are well founded and have an adequate juridical basis in the rules and/or authorities. I therefore indicated to the parties I would give a short written judgement in the hope that such applications would be better prepared in future.
11. At paragraphs 30 and 31 of his judgment in [I] v Hull & East Yorkshire Hospitals NHS Trust HHJ Robinson said;
“30. In my judgment, rules 44.2(1) and 44.2(2) are wide enough to allow the Court to make an order for costs of the kind sought by the Claimant:
(1) The discretion conferred by rule 44.2(1) relates to the questions whether costs are payable, the amount and when the costs are to be paid.
(2) Rule 44.2(2) sets out the general rule that the unsuccessful party pays the costs of the successful party.
31. Rule 44.6(c) gives the court power to order payment of costs “from or until a certain date only”.
12. I agree with these observations. The discretion conferred by section 51 of Senior Courts Act 1981 and expressed in CPR 44 (2) is a very wide one. As Irwin LJ commented when refusing permission to appeal the meaning of “successful party” or “unsuccessful party” cannot be confined to a binary outcome of the whole case. But 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.
13. 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.
14. Putting the matter this way makes it clear that the court will wish to take into account the factors listed in CPR 44.2 (4) and (5) and will normally expect to be presented with sufficient information to enable it to carry out that exercise. I do not consider there is a basis for asserting any kind of exceptionality test. The court will consider such applications on the basis of established principles.
15. A relevant consideration will be to preserve security for a Defendant and to ensure that there is a limited risk of such costs having to be repaid although I accept, as did HHJ Robinson, that a defendant who has overpaid costs to a claimant’s solicitor may seek to set off such costs against damages. Without being prescriptive relevant considerations may include:
i) the type of funding agreement and details of any payments made under that agreement,
ii) whether any Part 36 or other admissible offer has been made, and if so, full details of the offer,
iii) details of any payments on account 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.
16. It is clear that Ms Bean’s witness statement failed to adequately address any of the above issues and amounted to no more than a cri de coeur for more money. The need for solicitors engaged in heavy and protracted litigation to expect adequate cash flow is now well understood and enshrined in the rules, see the note at 44.2.12 of the White Book. The parties may serve one further witness statement each and apply to re-list the application for hearing before me. I hope that those who make such applications in future will ensure that all relevant material is put before the court in support of the application.