Manuel Mathieu v Tony Martin Hinds
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWHC 1624 (QB) |
| Docket Number | Case No: QB-2018-004679 |
| Court | Queen's Bench Division |
[2022] EWHC 1624 (QB)
Mrs Justice Hill
Case No: QB-2018-004679
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Theo Huckle QC and Kara Loraine (instructed by Powell & Co) for the Claimant
Marcus Dignum QC, Hugh Hamill and Andrew Roy (instructed by DWF Law LLP) for the Second Defendant
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.
Covid-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of hand-down is 12 noon on 23 June 2022
Introduction
This is a claim for damages for personal injuries arising out of a serious road traffic accident that took place on 28 November 2015. The Second Defendant admitted liability on behalf of both Defendants. On 5 June 2019 Master Gidden entered judgment for the Claimant with damages to be assessed. After a ten-day quantum only trial, for the reasons given in my judgment dated 13 April 2022, the Second Defendant was ordered to pay the Claimant £3,178,741.64 in damages. He succeeded in his claim for provisional damages in relation to epilepsy, but not in relation to dementia. It is now necessary to resolve the various issues raised by the parties' written submissions on costs.
The Claimant's position is that there is no basis for regarding him as anything other than the successful party for the purposes of CPR 44.2(2)(a), or for departing from the general rule therein, such that the Second Defendant should pay his costs, to be assessed if not agreed. He seeks an interim payment on account of costs of £725,907.40 inclusive of VAT.
The Second Defendant's primary position is that (i) the Claimant should recover only 50% of his costs up to 31 January 2022; (ii) the Claimant should pay the Second Defendant's costs from 1 February 2022; and (iii) the interim payment to the Claimant on account of costs should be £90,000. Alternatively, the Second Defendant invites me to consider with respect to the period after 1 February 2022 (i) ordering the Claimant to pay a percentage of the Second Defendant's costs; (ii) making no order for costs; or (iii) ordering the Second Defendant to pay a percentage of the Claimant's costs.
The Second Defendant argues, in summary, that (i) the Claimant did not win the dementia claim; (ii) he achieved partial success overall and his claim was exaggerated; and (iii) his conduct of the litigation is relevant, including his rejection of various offers made by the Second Defendant. 1 February 2022 is said to be a significant date because that was 3 weeks after an offer of £3,555,000 was made to the Claimant which he rejected and which he has not “beaten” at trial.
The facts
The detailed factual background to the claim is set out in the quantum judgment dated 13 April 2022. The following reflects only the factual matters which I consider to be pertinent to the costs issues that I now need to resolve.
The Claimant's final Schedule of Loss provided before the trial sought damages of CAD (Canadian) $56,028,428, in total, equivalent to £33,617,057: [4] of the quantum judgment.
Prior to the trial, the parties had engaged in extensive attempts to settle the claim, including at a joint settlement meeting and a mediation. The parties had made
‘ Calderbank’ offers (i.e.. offers made without prejudice save as to costs, outside Part 36) and Part 36 offers, as follows:
(i) On 19 October 2018 the Claimant made a Part 36 offer in the sum of £235,000. This was withdrawn on 3 October 2019.
(ii) On 13 December 2021 the Claimant made Calderbank offers of (i) £10,950,000 excluding his provisional damages claims in relation to epilepsy and dementia; and (ii) £17,050,000 including the provisional damages claims. Both offers were open until 20 December 2021 and were then automatically withdrawn.
(iii) On 11 January 2022 the Second Defendant made (i) a Part 36 offer of £3,125,000; and (ii) a Calderbank offer of £3,550,000. Both were said to be in full and final settlement of all the Claimant's claims. The latter offer was open until 18 January 2022 and was then automatically withdrawn.
(iv) On 13 and 19 January 2022 the Claimant made further Calderbank offers of £8,050,000 and £7,250,000, including his provisional damages claims. These offers were open until, respectively, 19 and 26 January 2022, and then automatically withdrawn.
(v) On Saturday 5 February 2022, with the trial due to start on Tuesday 8 February 2022, the Second Defendant made a further Calderbank offer of £4,000,000.
The following is also relevant to understanding the settlement process:
(i) In making his £10,950,000 offer on 13 December 2021, the Claimant proposed that if his offer was accepted the provisional damages claims could be determined as a “standalone” issue by the court during the upcoming trial listing. Further correspondence suggests that this was the approach the Claimant had taken throughout the negotiations. The Second Defendant would not agree to this course.
(ii) By letter dated 13 January 2022 the Claimant's solicitor said the following to the Second Defendant: “It is clear to us that the sticking point in relation to settlement is our client's claim for provisional damages in relation to the risk of our client developing dementia as a result of his [Traumatic Brain Injury]. You have refused to agree an award of provisional damages. Further it is apparent that when calculating your offers, you have included no allowance for the costs of “buying off” the provisional damages claim…We believe your refusal to agree or engage in any way in our offer to deal with the claim for provisional damages as a single issue at trial is wholly unreasonable. We therefore put you on notice that we reserve the right to refer to our offers in this regard and the contents of this letter in due course in relation to costs”.
(iii) By letter dated 19 January 2022 the Claimant's solicitor referred to the basis of the provisional damages claim in relation to dementia as being Dr Orrell's evidence that he had a 20% chance of developing dementia at age 60, following which he would be unable to paint, and would likely not survive beyond a further 6 years. The importance of the claim to the Claimant was reiterated. The letter continued: “Our client is extremely reluctant to agree to the claim being “brought off”. He will only agree to do so if any settlement properly reflects the significant risk he faces in later life. Clearly, your only offers of settlement make no or no adequate allowance for the provisional damages claim. Our instructions then are to proceed to trial in the event that our client's final offer is not accepted”.
(iv) The Second Defendant's position is that the provisional damages claim in relation to dementia was “…of enormous importance to [the Second Defendant] and other such insurers and large institutional defendants' industry wide. Establishing that [provisional damages] are not normally recoverable for dementia is [a] very important standalone victory for [the Second Defendant] in its own right…. Indeed [the Second Defendant's] success on this issue was much more important than the precise level of damages payable to [the Claimant] in this case (which was of no wider significance)”.
The total claimed on the Claimant's Schedule of Loss included a sum of CAD $8,203,123, equivalent to £4,921,873, for immediate damages in relation to dementia. The introduction to the Schedule stated the following: “The Claimant claims a provisional damages award but includes here computations based upon [the chances of the Claimant developing dementia advanced by Dr Orrell] if immediate award were considered appropriate by the court and/or desired by the Defendant”. During his opening of the trial on 8 February 2022, Mr Huckle QC indicated that the immediate damages claim was not being pursued, and the claim in respect of dementia advanced solely as one for provisional damages.
The final sum awarded to the Claimant of £3,178,741.64 equates to around 9.5% of the amount claimed on the final Schedule of Loss provided before trial.
The most recent approved costs budget for the Claimant is dated 16 November 2020. It totals £518,088.50 of which £55,050.50 were incurred and unapproved costs and £463,038 were approved budgeted costs. On 24 September 2021 the Claimant applied to increase this budget by £273,875 on the basis that a Pre-Trial Review and updating witness evidence from the Claimant and the gallerists were required. Although the application was listed there was insufficient court time to address it before the trial.
The Claimant submits that an application to depart from the budget in further respects will be needed in any event because (i) the budget only provided for a 5-day trial whereas the trial in fact took 9 days of evidence with further oral and written submissions thereafter; and (ii) the budget did not provide for a Pre-Trial Review (which the court eventually ordered) or a mediation which the parties had engaged in.
The Second Defendant's position is that there are strong arguments to the effect that the additional costs incurred reflect a failure by the Claimant's side to anticipate what were predictable litigation contingencies such that a departure from the budget should not be permitted.
The legal framework
The Court's general discretion in relation to costs is derived from CPR 44.2, which provides in material part as follows:
“44.2
(1) The court has discretion as to –
(a) whether costs are payable by one...
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