AB and Others v Leeds Teaching Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gage |
| Judgment Date | 09 May 2003 |
| Neutral Citation | [2003] EWHC 1034 (QB) |
| Docket Number | Case No: HQ0101462 |
| Court | Queen's Bench Division |
| Date | 09 May 2003 |
[2003] EWHC 1034 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Gage
Case No: HQ0101462
Mr M A M S Leigh (of Hempsons, Solicitors) for the Defendant
Mr D N Harris (of Alexander Harris, Solicitors) for the Claimants
Hearing dates: 14 April 2003
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Introduction :
Before the court is an application by the defendants for an order to cap the costs of the claimants both retrospectively and prospectively. The intention of the defendants to ask for such an order was notified to the court at a case management conference in January 2003. It is acknowledged by both parties that the making of such an order would be a novel procedure. However, whilst not strongly opposing the making of an order in this case Mr Harris, the claimants' solicitor, reserves his position in relation to any future group litigation. The order, if made, would be retrospective in that it is agreed it would start from 10 February 2003 and prospective as it would include all costs, save for specific orders made in subsequent interlocutory proceedings, up to and including the end of the trial. The claimants do not seek any such order in respect of the defendants' costs. At the hearing of this application on 14 April 2003 I sat with Senior Costs Judge Hurst with whom I have discussed the issues in this case and from whom I have received invaluable advice. The Senior Costs Judge has considered this judgment in draft but I alone am responsible for the contents and conclusions.
Background:
The claims arise out of the retention by various hospitals of organs of deceased children and adults. Following the discovery of this practice in 1999 individual claims were made by claimants through many different firms of solicitors against different hospitals throughout England and Wales. The number of claims and the common features of each of them soon made it apparent that they were suitable for grouping together in a group litigation order (GLO). In the event the claims were grouped together in two GLOs. The first GLO was made in respect of claims arising out of organ retentions at the Royal Liverpool Children's Hospital at Alder Hey, Liverpool. The group order for that group was made on 18 December 2000. A second GLO was made on 16 May 2001 in respect of organ retentions at all other hospitals. This group is known as the Nationwide Organ Group Litigation (NOGL). By agreement of the parties it was proposed that lead cases in the Royal Liverpool Group Litigation should be tried first. In the event, following mediation, all but two of the claims in that group were compromised and I made a final order in that litigation on 31 January 2003.
Pending the trial of the lead cases in the RLGL proceedings in the NOGL were stayed. When it became apparent in December 2002 that the claims in the RLGL were likely to be settled the stay on the NOGL was lifted and on 6 February 2003 I made an order giving directions for its future conduct setting out a time-table leading up to a trial starting on 26 January 2004 estimated to last four to six weeks. Several times, I have stressed that the trial date must be met.
As yet pleadings have not been served although the parties are well aware of the issues involved. It is intended that there be four lead cases and that the claims will include causes of action expressed as negligent failure to counsel bereaved relatives; breach of statutory duty; negligent failure to provide information; wrongful interference with a body; and deceit. Damages claimed will include aggravated and exemplary damages; and damages for breach of Human Rights. It is agreed by both parties that the legal issues are complex and may be to some extent ground-breaking. In my view, the factual disputes are likely to be less complicated.
The order of 6 February 2003 allows for seven experts on each side consisting of a psychiatrist or psychologist, two consultant pathologists, three additional medical experts, and an academic ethicist or theologian.
There have been approximately 2100 potential claims notified to the two lead solicitors of which 369 at present are on the Register. The Register closes on 31 July 2003.
The Power to make a Costs Cap Order :
It is common ground that the Civil Procedure Rules make no reference to a specific power in the court to make a costs cap order. However, it is clear from the Woolf Report that the court, particularly in Multi-Party Actions, is encouraged to take control of costs just as it is to control the management of issues. The Report makes specific reference to a paper by AAS Zuckerman published during the Inquiry stage which contained a section entitled "Prospective Budget Setting". Paragraph 12 of that paper reads:
"One option to be considered is replacing retrospective taxation with prospective budget setting. Under this regime budgets would be set in advance so that the process would have to conform to budgetary constraints, rather than the cost following the process as at present."
In Chapter 17, Section IV of the Woolf Report, at paragraphs 32, 56 and 57 there is a further reference to the necessity for the court to take hands-on control of costs at an early stage in Multi-Party Actions. Paragraph 57 contains the following statement:
"At every stage in the management of the MPS the judge should consider, with the help of the parties, the potential impact on costs of the directions that are contemplated, and whether these are justified in relation to what is at issue. Parties and their legal representatives, as in other cases on the multi-track, should provide information on costs already incurred and be prepared to estimate the cost of proposed further work."
Recently in Solutia UK Limited v Griffiths [2001] EWCA Civ 736 the Court of Appeal has given further encouragement for the controlling of costs. Sir Christopher Staughton at paragraph 29 stated:
"So surely case management powers will allow a judge in the future to exercise the power of limiting costs, either indirectly or even directly, so that they are proportionate to the amount involved."
And Mance LJ at paragraph 33 stated:
"The present litigation was conducted under the old rules preceding the Woolf reforms. It is to be hoped that subsequent to the Woolf reforms judges conducting cases will make full use of their powers under the Practice Direction about costs, section 6, which appears in the Civil Procedure White Book 43/PD-006, to obtain estimates of costs and to exercise their powers in respect of cost and case management to keep costs within the bounds of the proportionate in accordance with the overriding objective."
Section 51 of the Supreme Court Act 1981 (as amended) contains the following provisions relating to costs:
"(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings … shall be in the discretion of the court.
(2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives.
(3) The court shall have full power to determine by whom and to what extent the costs are to be paid."
It is clear from this section that the powers of the court are wide. It has been held that, even before the advent of the CPR, these powers together with the power to make orders for costs under Order 62 of the Rules of the Supreme Court included the power to make a pre-emptive order for costs (see Joseph Owen Davies v Eli Lilly & Co 1987 1WLR 1136). More recently the Divisional Court in R v The Prime Minister and Others ex parte The Campaign for Nuclear Disarmament [2002] EWHC 271 made an order limiting to £25,000 the Applicants' liability for costs in the event of costs subsequently being awarded against it. The application was made under CPR 44.3. In that case the power to make the order sought was not in dispute.
CPR 3.1 (as is well recognised) provides the court with extensive and wide-ranging general powers of case management to be carried out in accordance with the overriding objective set out in CPR 1.1. CPR 1.1.(2) states:
"Dealing with cases justly includes so far as is practicable –
(a) Ensuring that the parties are on an equal footing;
(b) Saving expense;
(c) Dealing with the case in ways which are proportionate –
(i) To the amount of money involved;
(ii) To the importance of the case;
(iii) To the complexity of the issues; and
(iv) To the financial position of each party."
CPR 3.1 .(2) (m) provides the court with the power:
"to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
The notes to Part 3 of the CPR at 3.1.8 refer specifically to "Costs Budgeting" and makes specific reference to Solutia UK Limited v Griffiths.
CPR 19.10 – 15 deals specifically with GLOs but makes no reference to costs. CPR 48.6A deals with the costs in GLOs but makes no reference to cost capping or budgeting.
CPR 43 and 44 deal generally with costs. CPR 43.3 defines summary assessment of costs. CPR 44.3 sets out the circumstances to be taken into account by the court when exercising its discretion as to costs and the orders which the court may make. CPR 44.4 and 44.5 deal with the basis of assessment of costs and the factors to be taken into account in deciding the amount of costs.
Section 6 of the Practice Direction about Costs under the...
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