Summary of Recent Cases – Costs

When permission was given to serve amended Particulars of Claim it was wrong that a party was ordered to pay the costs of the action to date

Chadwick v Hollingsworth (No.2), QBD, 2/11/10

Permission was given for the Claimant to amend his particulars of claim in a medical negligence action which it was held at first instance would amount to the advancement of a substantially new case. It had also been the view of the judge that his particulars as originally drafted would have failed to prove his case and he was ordered to pay the entire costs of the action up until the time of amendment. Rix LJ held that the correct order for costs should have been that the Claimant bear the costs of and caused by the amendment, however justice was best served by leaving the issue of costs to the trial judge at the cessation of proceedings who would at that stage be able to take into account the ultimate result. If the Claimant succeed solely on the new particulars of breach, the judge may well be entitled to order costs up until the time of amendment, however if he were to succeed at trial at least in part due to allegations contained within the original pleading, the judge may well wish to take this into account.

A Defendant who had made a Part 36 offer in respect of some but not all injuries sustained by the Claimant had made an offer to settle the whole of the claim

Tracey Sutherland v Frank Turnbull, QBD, 26/10/10

The Claimant had sustained multiple injuries in a road traffic accident when she fell from her husband’s vehicle and was subsequently run over by the Defendant. The Defendant made a Part 36 offer to settle her claim save for head and shoulder injuries which it alleged had been sustained in the fall from her husband’s vehicle. Rix LJ held that the court had no discretion as to the costs to be awarded in accordance with r. 36.10(2) and she was instead entitled to all her costs as of right from the date she served notice of acceptance in accordance with r. 36.10(1). An objective reading of D’s offer suggested it was an offer to settle all outstanding issues of liability. This was underlined by r.36.11 which, had the offer meant to exclude the head and shoulder injuries, would have dictated that the claim for damages for the head and shoulder would have still needed to proceed to trial-this was plainly not the Defendant’s intention.

It was not unreasonable to enter into a CFA at a time when liability had been admitted providing the parties made a proper assessment of the reduced risk

Stewart Robert Thornley (A child by his mother and litigation friend Lavina Thornley) v Ministry of Defence, QBD, 14/10/10

The Claimant was born prematurely after his mother was knocked over in an RTA. The Claimant’s claim was initially funded by legal expenses BTE insurance, however after this ceased the Claimant’s mother entered into a CFA at which point both liability and causation had been admitted. On a costs appeal the court held that it was reasonable to have entered into a CFA, however the success fee was reduced from an assessment of 33.3% at first instance to 15% on the basis that complexity was not to be confused with risk which, given the admissions, was very low. The principle risk was an early Part 36 offer, which given the fact that early settlement was not possible, remained a real risk. No success fee was to be awarded to counsel given that it was the court’s view that she was not at risk of not receiving payment of her normal fees.

December 22, 2010 · Editorial Team · Comments Closed
Posted in: Cases