Ryan Kerins V Heart Of England NHS Foundation Trust CC (Birmingham) 31/07/2015

The court considered the meaning of “improper conduct” in CPR 44.11.

The claimant’s (C) claim for damages for clinical negligence settled shortly after proceedings were served. The defendant (D) agreed to pay C’s costs to be subject to detailed assessment.

C had a before the event (BTE) insurance policy, which would have covered some of his legal fees. He decided to proceed without making use of the BTE policy and, in April 2012, he instructed solicitors with whom he entered into a conditional fee agreement (CFA). Subsequently, C entered into a second CFA with the same firm of solicitors dated March 2013 and which complied with the requirements of the BTE policy. The notice of funding referred only to the first CFA and the bill of costs did not mention the second CFA or the BTE insurance. The existence of both was only disclosed days before the detailed assessment.

D submitted that the entirety of C’s costs should be disallowed under CPR r.44.11. C argued that it was sufficient that his solicitors had agreed to forgo their success fee, and the court should not exercise its discretion to disallow all or any further part of his costs.

DJ Griffith held that it was reasonable to infer that the second CFA and the BTE policy were intentionally kept secret, and that an obvious reason to do so was that the inaccurate portrayal of the funding position would serve to strengthen C’s arguments in justifying the success fee. “Improper conduct” was not limited to situations where there would be a significant breach of professional conduct, but also encompassed conduct which could be regarded as improper according to a consensus of professional or judicial opinion. It was likely that misrepresenting the position in a bill of costs could be regarded as improper conduct in either sense. Further, the conduct clearly fell within the meaning of “unreasonable” in r.44.11. In forgoing the success fee, C had only conceded what he was likely to lose in any event once the true facts were known. The court exercised its discretion and made an order disallowing 50 per cent of K’s costs as assessed.

September 15, 2015 В· Editorial Team В· Comments Closed
Posted in: Cases