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Cost Drafting and Medico-Legal Blog

 

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Pride comes before a Costs Order

Posted on 26th April, 2018

(1) SHAKIR ALI (2) SHAHIDA ASLAM v CHANNEL 5 BROADCAST LTD [2018] EWHC 840 Ch D (Arnold J) 19/04/2018

 

The Claimants, in this misuse of private information case, had been successful, but had failed to beat a Part 36 offer (which in turn had failed to include/provide an apology).  

 

The lack of an apology did not impact the usual costs consequences of failing to beat a Part 36 offer or make it unjust to impose the usual consequences.

Apolog

Posted on 26th April, 2018

(1) SHAKIR ALI (2) SHAHIDA ASLAM v CHANNEL 5 BROADCAST LTD (2018)

 

[2018] EWHC 840 (Ch)

Ch D (Arnold J) 19/04/2018

CIVIL PROCEDURE - COSTS - TORTS

APOLOGIES : COSTS : COSTS BUDGETS : ESTOPPEL : MISUSE OF PRIVATE INFORMATION : PART 36 OFFERS : STATEMENTS IN OPEN COURT : VALIDITY

 

Where the claimants had succeeded in their claim for misuse of private information but failed to beat a Part 36 offer made by the defendant, the defendant's failure in the offer to provide an apology or agree to a statement being made in open court did not make it unjust to impose the usual costs consequences of failing to beat a Part 36 offer. Among other things, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court.

 

The court was required to rule on costs after giving judgment in favour of the claimants in their claim for misuse of private information against the defendant broadcaster.

Proceedings were issued in June 2016. On 27 September 2017, the defendant's solicitors made a Part 36 offer. The claimants' solicitors replied on 12 October, noting that the offer was monetary only, that no apology had been offered and that the defendant had not acceded to a request to give an undertaking not to broadcast again the TV programme complained of. The claimants' solicitors also asserted that they were not in a position to assess the monetary offer without the disclosure of viewing figures for the programme. The defendant's solicitors replied on 17 October. No apology was offered, but they did state that the defendant would be prepared to undertake not to broadcast again the segment of the programme that featured the claimants. In addition, viewing figures were provided. The case proceeded to trial. The claimants succeeded but failed to beat the amount offered in the Part 36 offer.

HELD: Costs to 18 October 2017 (date of expiry of Part 36 offer) - The claimants had succeeded in their claim and were entitled to their costs for this period (see paras 34, 36 of judgment).

Costs from 18 October to 8 November 2017 - The claimants were entitled to their costs for this period also. The defendant's solicitors' letter of 17 October 2017 amounted to an improved Part 36 offer such that the 21-day period started to run again. That was because the letter offered an undertaking, which addressed for the first time the non-monetary relief sought by the claimants, namely an injunction to restrain further broadcasting of the information complained of (para.38).

Costs after 8 November 2017 - The usual consequence of failing to beat a Part 36 offer should apply: the claimants should pay the defendant's costs. The claimants had argued that the letter dated 27 September 2017 was not a valid Part 36 offer, as it contained an offer to settle their claims by paying them jointly the sum in question, whereas they had distinct individual claims. That submission could not be accepted. First, while the claimants' claims were technically distinct individual claims, they were parallel claims made by a married couple arising from the same events. Although the claimants were not necessarily entitled to the same sum by way of damages, they presented a united front throughout the litigation and could have agreed the division of the sum between them. Thus, the mere fact that the sum was offered to them jointly did not mean that the offer was not made in accordance with CPR r.36.5. Second, the claimants were estopped from challenging the validity of the Part 36 offer. The letter dated 27 September 2017 stated that it was made in accordance with Part 36 and that it was intended to have the usual consequences of a Part 36 offer. It also invited the claimants' solicitors to respond promptly if they thought that the offer was defective. No suggestion was made that the offer was defective. On the contrary, the claimants' solicitors treated the offer as a valid Part 36 offer, Seeff v Ho [2011] EWCA Civ 401 followed. The claimants had also argued that it would be unjust for the usual consequence of failing to beat a Part 36 offer to apply. In that respect, they relied on the defendant's failure to disclose the viewing figures for the programme. However, the absence of that information did not justify the claimants' failure to accept the sum offered. In any event, the information was disclosed in the letter of 17 October 2017. The claimants also relied on the defendant's failure to offer an apology or to agree to a statement in open court being made. However, that did not justify the claimants' failure to accept the improved offer. First, there was no settled practice that claimants in cases of misuse of private information were entitled to an apology or an agreed statement in open court. Second, the claimants could have applied to make a unilateral statement in open court. Third, damages for misuse of private information were compensatory, not vindicatory (paras 40-45, 47-48, 51-52).

Effect of defendant's failure to file or serve costs budget - The defendant had failed to comply with a direction to file a costs budget. The usual consequence of that failure should apply: the defendant was only entitled to 50% of its assessed costs after 8 November 2017 (paras 53-56).

Costs determined

Counsel:
For the claimants: William Bennett , Felicity McMahon
For the defendant: Tom Blackburn

Solicitors:
For the claimants: Hamlins LLP
For the defendant: Lee & Thompson LLP

 LTL 20/4/2018

BROOM & ANOR v ARCHER & ORS, QBD (TCC) (Fraser J) 28/03/2018

 

This case highlights the importance of compliance with practice directions.  

 

A costs budget approved by the court in April 2017 had a mathematical error (which is not unusual when parties are frantically re-casting figures whilst in court).  As the budget was not re-filed and re-served with re-cast figures and annexed to the order, the error was not noticed until some time later.  Fortunatley, on this occasion, a revised costs budget was approved owing to significant developments in the case.

The importance of serving Notice of Funding

Posted on 20th March, 2018

NEVILLE SPRINGER (PERSONAL REPRESENTATIVE OF THE ESTATE OF WAYNE ANTHONY SPRINGER, DECEASED) v UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST [2018] EWCA Civ 436 15/03/2018

 

Do not forget to serve Notice of Funding as soon as possible.  Rely at your peril on the words "in any event either within 7 days of entering into the funding arrangement ... or in the letter of claim".

 

 

BRUMA v HASSAN & ANOR, QBD (Judge Curran QC) 16/01/2018

 

The defendants in this catastrophic RTA had done little to try to settle in circumstances where they had rejected a Part 36 offer.  Indemnity costs were awarded, with 4% above base being the appropriate rate of interest under CPR r.36.17(4)(c).

 

 

BRUMA v HASSAN & ANOR, QBD (Judge Curran QC) 16/01/2018

 

The defendants in this catastrophic RTA had done little to try to settle in circumstances where they had rejected a Part 36 offer.  Indemnity costs were awarded, with 4% above base being the appropriate rate of interest under CPR r.36.17(4)(c).

 

 

WRIGHT v FIRSTGROUP PLC, QBD (Foskett J) 12/01/2018

 

Another case where a Claimant was granted permission to use a new expert in circumstances where their expert had changed his view following a joint meeting and to not allow a new expert would have resulted in an unfair disadvantage to the Claimant.

 

This was an unusual case and it should be borne in mind that the court would always deter expert shopping. 

 

Part 36, Indemnity Costs, Inflation of Costs, Assignment of CFA

 

(1) DOREEN MCKEOWN (2) DANIEL MCKEOWN v TANZA TOTTLE VENTON, CC (Liverpool)12/06/2017

Defendant's late acceptance of Claimant's Part 36 offer in low value personal injury claim which had exited portal did not give rise to entitlement to indemnity costs.

 

Costs penalty for late acceptance of Part 36 offerhttps://www.lawgazette.co.uk/law/libel-claimants-face-costs-penalty-for-late-acceptance-of-part-36-offer/5063580.article

 

W PORTSMOUTH & CO LTD v CHRISTINE LINDA LOWIN (DAUGHTER & EXECUTRIX OF THE ESTATE OF ADELAIDE LOWIN, DECEASED), EWCA

CA (Civ Div) 19/12/2017

Where costs of a provisional assessment are awarded on an indemnity basis under r.36.17(4), those costs would be subject to the cap under CPR r.47.15.

 

https://www.litigationfutures.com/news/provisional-assessment-cap-not-displaced-part-36-offer-court-appeal-rules

 

(1) NICHOLAS MARTIN (2) BIG HAT STORES LTD (Claimants) v JULIA KOGAN (Defendant/Part 20 Claimant) & (1) FLORENCE FILM LTD (2) PATHE PRODUCTIONS LTD (3) QWERTY FILMS LTD (Part 20 Defendants)

IPEC, 13/12/2017
A case setting out how the court should deal with an award of indemnity costs where the Defendant had failed to beat the Claimant’s Part 36 offer.

 

http://www.opusip.co.uk/2017/12/17/3266-html/

 

WHITE & ANOR v PSM RESIDENTIAL FINANCE LTD & ANOR, QBD (TCC), 13/12/2017

In this case serious allegations had been made against the Defendants without any sustainable evidence in support. Unreasonable conduct, taking the case out of the norm, leads to an award of indemnity costs.

 

WHALEYS (BRADFORD) LTD v (1) GARRY BENNETT (2) JONATHAN CUBITT EWCA CA (Civ Div) 15/12/2017

Reiterates the exceptional test as being ‘one that takes the case out of the norm’. Ordinary behaviour does not render it reasonable.


https://www.exchangechambers.co.uk/james-malam-indemnity-costs-court-appeal-case/

 

GSD LAW LTD v CRAIG WARDMAN OF ST GOBAIN BUILDING DISTRIBUTION & ORS (2017) CA (Civ Div) 15/12/2017

The perils of inflating costs in schedules are highlighted here. It is not unusual when drawing a bill to come to a figure less than set out in an informal schedule. Often, however, this may be the case of costs being taken from a ledger, which would include non-recoverable work.

 

The case highlights (amongst other things) the importance of having a proper bill in the first instance. The judge found the allegations against the firm proven, and concluded that an appropriate sanction was to disallow all costs on the sample files under CPR r.44.11(2).

 

ALINA BUDANA (Appellant) v LEEDS TEACHING HOSPITALS NHS TRUST (Respondent) & LAW SOCIETY (Intervener) CA (Civ Div) 05/12/2017

During detailed assessment, an issue arose as to whether the purported assignment of an original CFA was legally effective. The purported transfer of a CFA to a second firm in respect of a PI claim resulted in a novated contract rather than an assignment; for the purposes of the transitional provisions of the LASPO 2012 s.44(6), the success fee payable to the second firm was payable under the CFA.

 

https://www.4newsquare.com/wp-content/uploads/2017/12/Court-of-Appeal-Judgment-Budana.pdf

 

http://www.zenithchambers.co.uk/current-awareness/personalinjury/%E2%80%8BTo%20Me...To%20You...%20–%20Assign%20Of%20Things%20To%20Come%20–%20Budana%20and%20CFA%20Assignment%20in%20the%20Court%20of%20Appeal

 

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Withdrawal of CANH, Expert ‘Shopping’, Information to be given to Patients & Limitation Points


NHS TRUST v (1) Y (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) Y

QBD, 13/11/2017

Not mandatory to seek the court's consent to withdraw clinically assisted nutrition and hydration (CANH) where clinical team and patient's family agreed that it was not in the patient’s best interests to continue to receive CANH.

 

D (A CHILD BY HER FATHER & LITIGATION FRIEND MR S) v CHAPMAN & ANOR

QBD, 10/11/2017

All is not lost if you obtain unsupportive medical evidence. A second opinion can be relied upon so long as the unfavourable opinions are served and that there is good reason for having sought a second opinion, with the instant case involving complex and highly controversial causation issues.

 

https://www.parksquarebarristers.co.uk/news/expert-shopping-considered-fiona-ross/

 

RAUL GUIU GALLARDO v IMPERIAL COLLEGE HEALTHCARE NHS TRUST, QBD 08/12/2017

Damages awarded to a patient who did not find out the real nature of his condition until 9 years after surgery to remove a malignant tumour. Seemingly in this case whilst it was recorded that there would be some flexibility as to timings for giving information, 9 years was not within the realms of flexibility. Had the patient been aware of the malignancy and risk of recurrence, he would have had the opportunity for regular monitoring and the chance to improve prognosis.

https://www.enablelaw.com/consent-medical-care-gallardo-v-imperial-college-healthcare-nhs-trust/

 

http://www.dailymail.co.uk/wires/pa/article-5160141/Damages-man-hospital-failed-tell-cancer.html

 

CHIEF CONSTABLE OF GREATER MANCHESTER v ROBERT CARROLL

CA (Civ Div) 01/12/2017

The perils of doing too good a job. As part of his training for and undercover work posing as a drug user, the police officer handled and heated heroin, ultimately leading to heroin addiction and psychiatric illness. The exercise of discretion under the Limitation Act 1980 s.33 enabled the former police officer to claim damages accordingly.

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/police-work-addicted-heroin-former-13981691

 

(1) GOVERNORS & CO OF THE BANK OF IRELAND (2) BANK OF IRELAND (UK) PLC v WATTS GROUP PLC QBD (TCC)12/07/2017

An interesting read for expert witnesses out there as expert Quantity Surveyor resists negligence claim by two banks following expert’s report on a borrower's cost estimates for a building development. It was found that the expert had not fallen below the standard to be expected, with reference to the fact that his role was to assess the reasonableness of the figures provided by the borrower and not to make a detailed calculation himself.

 

http://www.civillitigationbrief.com/2017/10/08/the-bank-of-ireland-round-two-appropriate-sums-for-an-interim-payment-on-account-of-costs-indemnity-costs-ordered-because-of-conduct-of-expert/

 

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Exaggeration of Symptoms & Fraudulent Claims

 

AVIVA INSURANCE LTD v ALEKSANDAR KOVACIC QBD, 07/11/2017

Another case of exaggeration of continuing symptoms; allegations of contempt of court were proved to the criminal standard as surveillance evidence showed PI Claimant lied and falsely represented continuing symptoms.

 

http://www.anthonygold.co.uk/wp-content/uploads/2017/11/Aviva-v-Kovacic-2017.pdf

 

ADVANTAGE INSURANCE LTD v CHRISTOPHER EWERE QBD, 16/11/2017

Another day; another Claimant falsifying his claim. Definitely one with a creative mind – after being found in contempt for falsely stating that had been in his parked car when it was struck by another vehicle.

 

https://www.forbessolicitors.co.uk/news/display/39785/dishonest-claimant-held-in-contempt-of-court

AVIVA INSURANCE LTD v AHMED, QBD, 21/11/2017

A case highlighting the problem faced by motorists with members of the public causing accidents for monetary gain. In this case, a man deliberately caused an RTA by braking suddenly in front of another vehicle.

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Letter from court = court order

Posted on 6th December, 2017

(1) PHILIP FREEBORN (2) CHRISTINA GOLDIE v DANIEL ROBERT DE ALMEIDA MARCAL (T/A DAN MARCAL ARCHITECTS) EWHC 3046 (TCC)QBD (TCC) 28/11/2017

Where a costs budget was filed 7 days before a CMC further to a court letter, rather than 21 days before in accordance with the CPR, there was no need to apply for relief from sanctions; firstly the letter was effectively a court order and could be relied upon and secondly, relief would have been granted in any event as the breach was not serious

Before continuing with the days work, I have been pondering the destruction spreading through the legal profession amid the application of fixed and budgeted costs.

 

As my colleague departs the office to do some DIY - painting at home, I thought more about how the legal profession are being stifled in their quest to do the best job possible in ever shortening time deadlines and suffocating reductions in costs.  

 

In no other industry (that I am aware of) are professionals and tradesmen expected to continuously get their work done to an ever increasing high standard within shorter and shorter timescales - all at risk of potentially not being paid at all (reference: late filing of costs budget) and if paid, at substantially lower figure than represents their time, hard work and expertise - all founded through years of training and dedication to the profession (reference - budgeted costs).

 

As a consumer, I generally get (like many others) several quotations when needing work done and choose a mid-way figure quote, based on a feel too of how well the work will be done.  If I am seeking for someone else to foot the bill at the end of the work, it would not be unreasonable for a professional third party to undertake a 'detailed assessment' of the work done and state what is reasonable for a consumer to pay (reference: old fashioned detailed assessment, which has always worked very well).

 

Imagine a scenario where a third party told the tradesman or professional what was reasonable for them to be paid at the outset - should a third party end up footing the bill.  

 

Imagine that they encountered unforeseen snags whilst doing the work and could not get on with that work without first dealing with the snags - at the risk of not being paid or being paid substantially less than equates to the time expended.  

 

Imagine them having to make an urgent application to increase the budget to a figure that would actually enable them to complete the work.  

 

Imagine how stressful this must be when the other work that they are required to do piles up (as a result of having to deal with these unforeseen issues) and they are at risk of not being paid on a further matter as they have to get their budget in on that too.. and the next one.... and the next one....  

 

Imagine their frustration at just wanting to get on with their job to the best of their ability, but not being able to do so and also having to explain matters to their very frustrated and stressed client (well court cases are generally stressful aren't they) at the same time.

 

Imagine that in other cases (where a budget isn't required), they can only get a fixed amount for doing work regardless of how long that work took.  

 

Imagine how difficult that might be for a self-employed person to budget their day to day finances at home (especially if they have children to think of) when their time input bears no relation to the pay they receive.

 

Imagine staying up till 2 and 3am to get work done.  Imagine missing family days at weekends to get work completed (and not getting paid at all - let alone overtime pay).

 

Imagine then worst of all, that having trained and worked hard for years, there simply is no way of remaining profitable and having to tell clients and employees that you are closing up shop.

 

If this applied across the board, what tragedy that would be and what a loss of fantastically skilled workmen and women in the workplace.

 

I am all for change, but only when change brings improvement and it is hard to see how fixed costs bring improvement or benefits, other than to the purses of the paying parties - and we know who they are in the main.

 

So yes, I agree with the analogy of Fixed and Budgeted costs & the North Korean missile.  That would certainly bring change.  Is that what we really wanted....

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