Drew v Whitbread
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Hooper,Lord Justice Etherton |
| Judgment Date | 09 February 2010 |
| Neutral Citation | [2010] EWCA Civ 53 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2009/0507 |
| Date | 09 February 2010 |
[2010] EWCA Civ 53
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
His Honour Judge Leeming
District Judge Wainright
Before: Lord Justice Waller
Vice-president of the Court of Appeal, Civil Division
Lord Justice Hooper
and
Lord Justice Etherton
Assisted by Senior Costs Judge Hurst
Case No: A2/2009/0507
5TA01844
Dr Mark Friston and Craig Ralph (instructed by Messrs Harris Fowler) for the Appellant
Andrew Hogarth QC and Benjamin Williams (instructed by Wansboroughs Solicitors) for the Respondent
Hearing date: 1 st December 2009
Lord Justice Waller:
This is an appeal from a decision of His Honour Judge Leeming QC dated 27 th January 2009 by which he upheld the decision of the regional costs judge, District Judge Wainwright, dated 8 th January 2008. The point raised on the appeal is not dissimilar from the point raised in O'Beirne v Hudson, an appeal we heard argued immediately prior to this appeal and in which judgment is being handed down at the same time as this judgment. In both appeals we have sat with Senior Costs Judge Peter Hurst and we can say at the outset how grateful we are for his guidance on these appeals.
In this case the judge, at the conclusion of the trial, ordered costs to be assessed on the standard basis. The District Judge ruled at the commencement of the assessment that she would be assessing the costs as if it had been allocated to the fast track. This gives rise to the main question raised on the appeal. An ancillary point relates to the fact that in ruling as she did she relied on a note of a ruling by the trial judge that recorded the trial judge as holding that the claimant had exaggerated his claim. A transcript obtained for the appeal to Judge Leeming showed that that was not an accurate record of what the trial judge had said.
On the appeal to Judge Leeming it was argued first that the District Judge had no jurisdiction to rule that costs should be assessed as a fast track case; alternatively second that, if a party was to contend, in a case allocated to the multi-track, the case should in fact have been allocated to the fast track and contend that that fact was relevant to the assessment of costs, that point should be taken before the trial judge and, if not taken, the point was no longer open to be taken before the District Judge assessing costs. It was thirdly contended that the District Judge was misled by the inaccurate note of the trial Judge's ruling as to exaggeration. Judge Leeming upheld the ruling of the District Judge; ruled there was nothing preventing the point being taken before the District Judge assessing the costs, even though it had not been raised before the trial judge; and held that the inaccuracy of the note made no difference.
The same points taken before Judge Leeming are now taken on this appeal.
The facts in more detail
On 1 st September 2002 the claimant fell off a ladder in the course of his employment and was injured. In December 2005 he brought a claim for personal injury alleging negligence and breach of statutory duty. He pleaded that he had suffered injuries to the lower spine with on-going symptoms, and he pleaded that the financial value of his claim exceeded £15,000 and included a claim for personal injury in excess of £1000. He ultimately replaced his first schedule of special damages with a schedule delivered in July 2006 claiming past losses of £3,677.84 and future losses of £18,325, on the basis that he would need a cleaner to help as a result of his injuries, and he claimed a Smith v Manchester award.
The defendants denied liability and alleged the claimant was negligent. They also delivered a counter schedule to the special damage claim asserting that the joint statement of medical experts agreed that the claimant would not have required any care and assistance as a result of the accident after three months and that thus that there was no claim for future losses.
As between solicitors some thought was given to the question whether the claim should be allocated to the fast track or the multi-track. The defendants' solicitors were suggesting that the value of the claim was fast track but recognised that the claimant's schedule of special damage alone totalled £30,309.41. They, on that basis, consented to the claim being multi-track. [See allocation questionnaire page 3]. In October 2006 the District Judge, it seems, withdrew permission for the attendance of medical experts to give evidence at the trial and, by letter dated 16th October 2006 to the claimant's solicitors, the defendants' solicitors suggested that this might mean the trial could be completed in a day, (i.e. within the timescale for a fast track case), but the claimant's solicitors responded that their counsel still thought the case might well go into a second day. Liability, as well as damages, was of course very much in issue.
The trial came on before Mr Recorder Hill-Smith and went into the second day. By his judgment the Recorder found that the defendants were liable but that the claimant was 25% responsible for his own injuries. On damages he found on the basis of the joint experts' report that the claimant's entitlement to help was for the period of three months and thus he recovered nothing for future losses put at £18,325 in his schedule. He did recover a Smith v Manchester award assessed at £5,000 prior to the deduction of 25%. The total damages, taking into account the 25% contributory negligence, were £9,291.56.
The defendants had paid £6,000 into court under Part 36 and thus that payment in was exceeded by the award.
Counsel for the defendant at that time, Miss Brown, first applied for permission to appeal the Smith v Manchester award and that was refused. She then raised points as to costs. She clearly had in mind the decision of Jack J in Aaron v Shelton [2004] EWHC 1162 [2004] 3 All E R 561, as can be seen from the fact that her first point was to rely on a failure on the part of the claimant to negotiate, despite increased offers by the defendant. The Recorder commented that it seemed to him that was a matter for assessment but Miss Brown's response was to assert “I have to raise these points in front of your honour; there is clear authority to that effect now.” Aaron v Shelton would on one reading so suggest.
Miss Brown identified three points she wished the Recorder to take into account in making his costs order referring to CPR 44.3 – first a failure to negotiate; second that there was an exaggeration by the claimant of his claim; and third unreasonable conduct in relation to the agreement of the joint experts. It is unnecessary to spell out the argument which took place on these points. The Recorder ruled that he was not going to make any special order for costs. He ruled so far as failure to negotiate was concerned that it was up to the defendants to make their own assessment and make any Part 36 offer. He left the point on experts to the costs judge. He said this about exaggeration:—
“Secondly, it is said that I should make a special order because Mr Drew exaggerated his claim in a number of respects. I am not going to make a special order in this respect. It is a fact that liability was strongly contested here throughout. Nevertheless, the defendants could have protected their position by conceding liability and making a written offer to concede contributory negligence, saying that there should be contributory negligence in X% they could have done that and protected their liability position. They did not do so. They contested liability throughout and that was the prime cost entailed in this litigation. Mr Drew did not succeed in the entirety of his care claim, that is completely true. He exceeded somewhat more than what was conceded by the defendants, but I really do not think it took much court time or cost to argue the point as to whether or not he should get it for three months or for some longer period. I really do not think any costs were associated with that. It is said that I accepted the defendants' figure for general damages, the range that I did. Well, so I did, but, nevertheless, that is just the cut and thrust of litigation, and the fact that the parties put forward different figures and I happened to select the defendants' figure, I think is no reason for me to make any special order as to costs. So, I do not find that Mr Drew's conduct of the case or the fact that he chose to fight certain issues is a reason for making other than the normal costs order.”
The order ultimately made was in the following form:—
“1. There be judgment for the claimant in the sum of £9291.56.
2. There be payment out forthwith to the Claimants solicitors of the monies in court in the sum of £6,000 Interest on the said sum in court to the 19 October 2006 be paid to the Defendants solicitors. Interest thereafter to the date of payment out be paid to the Claimants solicitors.
3. Balance of £3291.56 to be paid within 21 days.
4(a) The Defendant to pay the Claimants costs of the action to be assessed on the standard basis if not agreed.
4(b) The Defendant has permission to raise on detailed assessment all issues relating to costs incurred in relation to the issue of quantum including in particular all costs relating to correspondence with and of the medical experts since the 4 August 2006.
5. Permission to the Defendant to appeal on the issues of Smith v Manchester and costs refused.”
The bill of costs lodged by solicitors for the claimant was £78,458.65 including a 100% uplift...
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