Miss Sarah Woodburn (Claimant/Receiving Party) v Mr Desmond Thomas (Defendant/Paying Party)
| Jurisdiction | England & Wales |
| Judge | Master Victoria McCloud |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC B16 (Costs) |
| Docket Number | Case no. B13YP392 |
| Court | Senior Court Costs Office |
| Date | 11 August 2017 |
[2017] EWHC B16 (Costs)
IN THE SENIOR COURTS COSTS OFFICE
Master Victoria McCloud
sitting as a DEPUTY COSTS JUDGE
Case no. B13YP392
Ms Philippa Manby, Counsel instructed by Medical Accident Group on behalf of the Claimant/Receiving Party
Ms Andrea Barnes, Counsel instructed by Ellisons solicitors on behalf of the Defendant/Paying Party
Keywords
Costs budgeting — detailed assessment — costs guidance — Practice Direction 3E — practice and procedure — drafting of bills — Precedent H Guidance Note — costs lawyers
Introduction
This is a brief judgment on a point which arose in the course of detailed assessment before me sitting as a deputy Costs Judge. It deals with the interplay between the provisions of PD3E paras. D7.2–D7.3 and the provisions of the 'Precedent H Guidance Note' which is annexed to PD 3E, how that impacted on management of the detailed assessment in this case, and the approach taken.
In view of the relative shortage of decisions of courts which relate to the practicalities of detailed assessment in cases which have been subject to the new costs budgeting regime of CPR Part 3 and PD 3E, (as opposed to its predecessor in Defamation, or previous versions of the rules) it is perhaps unsurprising that the point arising here required attention. I do not of course purport to suggest that the approach is the only, or the ideal approach to take but only that it is the approach which was taken here. It may nonetheless be of use.
Practice Direction 3E B(6)(b)
PD 3E B(6)(d) states: "Parties must follow the Precedent H Guidance Note in all respects". That Guidance is annexed to the PD.
Leaving aside the uncomfortable tension between the notion of "Guidance" per the title of the document, on the one hand and the requirement in the PD that it must be followed in all respects, which at face value elevates it beyond guidance and into the realm of that which must be obeyed in all respects, the meaning is nonetheless clear enough. In drafting the Precedent H the costs lawyer should follow the Guidance. An unspecified sanction could presumably result from breach if the Costs Judge disapproved of a departure from the Guidance.
The Precedent H Guidance Note
The Guidance Note states at para. 4 (with bold text which appears in the original) that "This table identifies where within the budget form the various items of work, in so far as they are required by the circumstances of your case, should be included."
The above might be read as allowing some room for manoeuvre if the costs lawyer drafting the Precedent H decided that the circumstances of the case meant that it would assist the court to depart from the guidance as to where an item of work was placed in the form H, though a narrow reading would interpret the above as being limited to omitting from the Precedent H any items of work which were not required in that case (and therefore that where such items were required to be included in a given phase the Guidance must be followed as to where to include them). I need not decide that question but incline to the narrow view.
The Table annexed to the Precedent H Guidance Note (2017 White Book)
There are two parts of the Table which is annexed to the Guidance Note which are relevant to this judgment. One (ie (a) below) was in play at the hearing and the other (ie (b)) should be mentioned because the same reasoning would probably apply.
a. In the row of guidance relating to the CMC phase it is stated that (among other matters) the following must be included within the costs budget for the CMC phase:
• Reviewing opponent's budget
• Correspondence with opponent to agree … budgets, where possible
Specifically the following must (among other matters) be excluded from the CMC phase:
• Preparation of costs budget for first CMC (this will be inserted in the approved budget)
b. In the row of guidance relating to the PTR phase it is stated that (among other matters) the following must be included within the costs budget for the PTR phase:
• Preparation of updated costs budgets and reviewing opponent's budget
• Correspondence with opponent to agree … costs budgets, if possible
(there are no relevant exclusions from the budget for the purposes of this judgment).
It is clear from the above that the costs lawyer who follows the 'Guidance' note will include in the CMC (or PTR) phases some items which are identified above and which relate to the costs budgeting process and the content and agreement of costs budgets. Those parts of the budgeting costs will themselves therefore be budgeted as part of that phase.
Practice Direction 3E 7.2 and 7.3
PD 3E para. 7.2 states that "Save in exceptional circumstances –
(a) The recoverable costs of initially completing Precedent H shall not exceed the higher of £ 1000 or 1% of the approved or agreed budget; and
(b) All other recoverable costs of the budgeting and costs management process shall not exceed 2% of the approved or agreed budget."
Steps in this case
In this case the very brief procedural history is as follows:
a. Costs were budgeted by DJ Avent by an order dated 18 May 2016 at Central London County Court.
b. 'Assumptions' in the budget for the CMC phase were set out as follows insofar as relevant in a table attached to the Claimant's budget as approved:
• Work to date: Instructing Costs Draftsmen to prepare Costs Budget.
• Assumptions (sic):
— Reviewing Budget and liaising with Costs Draftsmen
— Attempting to agree budget
— Reviewing Defendant's Budget […]
— Preparing for further CMC … and updating and revising Costs Budget.
c. 'Assumptions' for the PTR phase (no work was done on this phase but I include for illustration):
— Liaising with Costs Draftsmen in order to update Budget
— Reviewing opponents Budget and correspondence with opponents to agree … Budgets.
d. I need not go into detail, but a further CMC was listed on 6 December 2016 before DJ Avent (there was an issue between the parties as to whether this was a CMC or, properly, a CCMC) but Central London County Court lost (or did not provide the judge with) the file and the hearing was aborted on the day with no substantive progress or revised or agreed budget.
e. In the period between the budget of May 2016 and the abortive hearing of December 2016 some costs (principally of an expert) were...
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