JLE (A Child by her Mother and Litigation Friend, ELH) v Warrington & Halton Hospitals NHS Trust Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 24 June 2019 |
| Neutral Citation | [2019] EWHC 1582 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2019-000027 |
| Date | 24 June 2019 |
[2019] EWHC 1582 (QB)
Mr Justice Stewart
Case No: QA-2019-000027
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURT OF COSTS OFFICE
MASTER MCCLOUD'S ORDER MADE 20 DECEMBER 2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Marven QC (instructed by Leigh Day) for the Appellant
Kevin Latham (instructed by Hill Dickinson LLP) for the Respondent
Hearing dates: 14 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant seeks to appeal an order made by Master McCloud sitting in the Senior Court Costs Office. The order was made on 20 December 2018. It was sealed on 25 January 2019.
There was a detailed assessment hearing before Master McCloud on 16–18 July 2018 and a further telephone hearing on 7 September 2018. The relevant part of the recital states:
“AND UPON The Court determining that the Claimant (having beaten her own Part 36 Offer dated 21 June 2018) should be awarded the sums provided for in CPR r. 36.17(4)(a), (b) and (c) but that it would be unjust to award the Claimant the sum set out in CPR r. 36.17(4) (d)…”
This was then reflected in paragraph 3 of the Order which provides:
“There shall be no order in respect of CPR 36.17(4)(d).”
The Appellant's notice makes it clear that this is the only part of the order sought to be appealed.
The appeal file was placed before William Davis J who made an order on 26 March 2019. He ordered the Appellant's application for permission to bring the appeal out of time and, subject to such permission being granted, for permission to appeal, with the hearing of the appeal (subject to permission) to follow.
I would like to say that I am very grateful to both counsel in this case for their command of the issues and the assistance they gave me.
Permission to Appeal out of Time
In section 11 of the Appellant's notice Ms Sarah Campbell of the Claimant's solicitors filed evidence in support. What she said is:
• The Master's judgment was handed down in the absence of the parties on Thursday 20 December 2018. The parties had already been able to agree an order on the basis of the draft judgment. That was sent to the court on 18 December 2018.
• Christmas and New Year intervened. She attempted to file an Appellant's notice with Grounds of Appeal and other documents on Thursday 10 January 2019. This was the last date within the 21 days provided for in CPR r. 52.12(2)(b). However, she did not have the sealed order. Enquiries of the Master subsequently confirmed that the order had not been sealed. The Court office refused to accept the Appellant's notice because they were not able to provide a sealed order. Her trainee was informed (erroneously) that the last date for filing the Appellant's notice would be 21 days from the date of the sealed order.
• A sealed order was received on Friday 25 January 2019.
• The Appellant's notice was filed and sealed on Monday 28 January 2019.
• There is no prejudice to the Defendant if an extension is granted. The Defendant's representatives have been aware since 4 January 2019 that the Claimant intended to appeal.
The Respondent does not oppose the extension of time.
CPR r. 52.12(2)(b) requires the Appellant to file the Appellant's notice at the appeal court within 21 days after the date of the decision of the lower court which the Appellant wishes to appeal. Although the court appreciates that it is particularly important that time limits in respect of appeals are observed, in the above circumstances I have no hesitation in granting permission to appeal out of time.
It will also become apparent that permission to appeal must be granted in this case.
Background
Leigh Day Solicitors were instructed on behalf of the Claimant in 2006. Proceedings were issued in June 2015. The Court approved settlement on 31 March 2017. In outline, the Defendant paid a lump sum of £2,500,000 and periodical payments for care and case management of £260,000 per annum are payable until the Claimant is aged 19, and thereafter at £312,000 per annum for life. The basis of the claim was for clinical negligence occurring shortly after the Claimant's birth on 3 December 2004.
In November 2017 the Claimant's Solicitors served a Bill of Costs totalling £615,751.51. On 21 June 2018 the Claimant made a Part 36 offer in the sum of £425,000.00, inclusive of interest, in respect of the Bill of Costs. That offer accordingly expired on Friday 13 July 2018, i.e. the last working day before the hearing commenced. The Master assessed the bill inclusive of interest in the sum of £431,813.05, i.e. £421,089.16 plus £10,723.89 interest. The claimant therefore beat her Part 36 Offer by just under £7,000.
The Master ordered the Defendant to pay the Claimant's costs of the detailed assessment and summarily assessed those in the sum of £44,745.16 plus indemnity interest of £10. She made orders in respect of CPR r. 36.17(4)(a)-(c) — these being minimal and not opposed — but no order in respect of CPR r. 36.17(4)(d).
The Relevant Rules
In respect of costs of detailed assessment proceedings CPR r. 47.20(4) applies Part 36 to the costs of detailed assessment proceedings with terminological modifications only. These modifications will be incorporated into the citation of the material parts of Rule 36.17 set out below. The only subparagraph which needs full citation from Rule 47.20 is Rule 47.20(4)(e) which provides:
“a reference to “judgment being entered” is to the completion of the detailed assessment, and references to a “judgment” being advantageous or otherwise are to the outcome of the detailed assessment.”
CPR r. 36.17, as modified by rule 47.20(4) says, so far as material:
“Costs consequences following judgment
36.17 —
(1) … this rule applies where upon judgment being entered –
(a) …
(b) judgment against the [paying party] is at least as advantageous to the [receiving party] as the proposals contained in a [receiving party's] Part 36 offer.
….
(2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.
…
(4) … where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to –
(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate; and
(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is –
(i) the sum awarded to the claimant by the court; or
(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs –
Amount awarded by the court
Prescribed percentage
Up to £500,000
10% of the amount awarded
Above £500,000
10% of the first £5000,000 and (subject to the limit of £75,000) 5% of any amount above that figure.
(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including –
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
(e) whether the offer was a genuine attempt to settle the proceedings.
(6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate…”
The Master's Judgment
At [2] the Master set out the question for her to determine as follows:
“…whether the Court has the power to award some, but not all of the consequences set out in CPR r.36.17(4) where the Claimant has achieved an award more advantageous that its own Part 36 offer, and if the Court does have that power, whether that power should be exercised so as to allow the consequences at subparagraphs (a), (b) and (c) of the Rule, but not that at (d).”
At [5] the Master noted that “having beaten its own offer by £7,000 on a bill of over £615,000, the consequence of allowing the extra 10% on the bill as assessed would be ..significant, i.e. over £40,000.”
The rival contentions as to the construction of Rule 36.17(4) are set out at [8]:
“8. It was the Defendant's contention that the court in giving effect to rule 36.17(4) must approach the question whether it is ‘unjust’ to make an order, separately for each of the types of consequences (a)-(d), i.e. the Court must decide whether it is just to award all, some, or none of the consequences set out in the Rule. The Claimant's contention is that the test of whether the consequences would be unjust if imposed is a gateway criterion which once overcome...
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