Mr Andrew Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust

JurisdictionEngland & Wales
JudgeMaster Simons
Judgment Date17 February 2017
Neutral Citation[2017] EWHC B5 (Costs)
Date17 February 2017
CourtSenior Court Costs Office
Docket NumberCase No: JMS 1603426

[2017] EWHC B5 (Costs)

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

Thomas More Building,

Royal Courts of Justice, Strand,

London, WC2A 2LL

Before:

Master Simons

Case No: JMS 1603426

Between:
Mr Andrew Rezek-Clarke
Claimant
and
Moorfields Eye Hospital NHS Foundation Trust
Defendant

Mr Richard Boyle of counsel & Mr John Mistri costs lawyer for the Claimant (instructed by Elite Law Solicitors)

Mr Richard Wilcock, Counsel for the Defendant (instructed by Acumension Limited)

Hearing date: 10 January 2017

Judgment Approved

Master Simons, Costs Judge:

Background

1

By a Consent Order made by the Northampton County Court on the 28 July 2015, judgment was entered for the Claimant in the sum of £3,250 and the Defendant was ordered to pay the Claimant's costs of the claim on a standard basis.

2

The claim was brought as a result of the Defendant's failure to refer the Claimant for imaging as it was alleged that had the Defendant done so, a pituitary tumour would have been found nine months earlier than was the case. The Claimant first instructed his solicitors, Thompsons, on the 31 July 2013 and letters of claim were sent to this Defendant, as well as two other proposed Defendants, on 20 June 2014. In a letter of response dated 14 November 2014, the Defendant's insurer admitted breach of duty, but denied causation. Proceedings had been issued against this Defendant and two other Defendants on 1 st October 2014, but the claims against the other Defendants were not pursued.

3

The Claimant's solicitor made a Part 36 offer to the Defendants to accept the sum of £5,500 in settlement of the claim on 9 January 2015. This offer was rejected. On 14 January 2015 the Claimant served proceedings on the Defendant. On 28 May 2015 the Defendant made a Part 36 offer of £1,500. Following further offers and telephone discussions, a settlement figure of £3,250 was proposed by the Claimant's solicitor and was accepted by the Defendants on 8 July 2015.

4

On 29 October 2015 the Claimant's solicitors served their Bill of Costs in the sum of £72,320.85. Points of Dispute and Replies to Points of Dispute were served between the parties and this was followed by a request for provisional assessment.

5

On 21 July 2016 I carried out a provisional assessment and assessed the bill in the sum of £24,604.40.

6

On 24 August 2016 the Claimant requested an oral hearing in accordance with CPR 47.15(7) in respect of the following decisions:

i) My finding that the bill was disproportionate;

ii) My reduction of the After the Event Insurance (AEI) insurance premium from £31,976.49 to £2,120.00;

iii) My reduction of the expense rates claimed;

iv) My reduction of Counsel's fees;

v) My reduction of four of the fees for medical reports totalling £18,036 (including VAT) to £7,500, plus VAT;

vi) My reduction of some of the attendances on the Claimant;

vii) My reduction of the document time claimed from 52.5 hours to 33 hours, 24 minutes.

7

The oral hearing took place this morning at which I dealt with points (iii)–(vii). I made no adjustments to my earlier decisions with regards to the expense rate and Counsel's fees. I increased the allowances that I made for the medical disbursements by £370, plus VAT, and I increased by two hours the attendance times on the Claimant. I also increased the document time by four hours.

8

This judgment deals with the issues of proportionality and the ATE premium.

The Evidence

9

Prior to the provisional assessment the Claimant's solicitors had lodged their full file of papers which I had considered when I carried out the provisional assessment. These papers were re-lodged by the solicitors prior to the oral hearing.

10

The Claimant's solicitors also provided me with witness statements from David Brown an ATE underwriting manager employed by DAS Legal Expenses Insurance Company Limited and also a witness statement from Linda Millband, a partner in the firm of the Claimant's solicitors, Thompsons.

11

At the hearing the Claimant was represented by Mr John Mistri, a costs lawyer who addressed me with regards to proportionality and the other items in issue. Mr Richard Boyle of Counsel addressed me with regard to the ATE premium issue having lodged a skeleton argument prior to the hearing.

12

The Defendant was represented by Mr Richard Wilcock of counsel. Mr Wilcock lodged with me a witness statement from Humera Raja, a solicitor from Acumension Limited, which company was conducting the costs litigation on behalf of the Defendants.

13

I have given much consideration to both the written and oral submissions made on behalf of the parties. If I have not specifically referred to a specific submission, it must not be assumed that such submission has not been taken into account in making my decision.

14

All work claimed in the bill was carried out after 1 April 2013.

The Rules

" CPR 44.3(2)

(2) Where the amount of costs is to be assessed on the standard basis, the Court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and;

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the Paying Party.

(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party; and

(e) any wider factors involved in the proceedings, such as reputation or pubic importance."

Proportionality

15

In their Points of Dispute the Defendants state that the costs claimed are disproportionate and that no privately paying client would ever incur this level of expense for a claim worth £3,250. They say that the costs do not bear any relationship to the factors listed in CPR 44.3(5).

16

Mr Wilcock submitted that this was always going to be a low value claim and that the Claimant's solicitors should at the outset have taken steps to deal with the claim in a proportionate manner. Mr Wilcock submitted that the sum allowed at the provisional assessment, £24,604.40 was a proportionate amount of costs bearing in mind that this was a claim for medical negligence and that the Claimant's solicitors were under an obligation to investigate the claim.

17

In their reply to the Points of Dispute, the Claimants state that the costs claimed were reasonable and proportionate. They submitted that that the Defendants' conduct should be taken into account as they disputed the issue of causation and it was therefore necessary to issue proceedings. They conceded that the value of the claim was modest but the Defendant's negligence had led to the Claimant suffering symptoms for nine months longer than necessary and this had caused his visual field to deteriorate. The claim was of considerable importance to the Claimant. This was a clinical negligence claim which was by its nature complex. The matter required a high degree of skill and specialised knowledge in order to prove the allegations of breach of duty and causation and it was necessary to instruct experts with specialist knowledge to prepare reports namely, a consultant ophthalmologist, a consultant neurologist, an endocrinologist as well as a GP. The solicitors further submitted that the costs claimed were reasonable given that the pre-action investigations were necessary to ascertain the appropriate Defendant.

18

In oral submissions Mr Mistri submitted that this was a clinical negligence claim whereby the solicitors were obliged to investigate issues of negligence, causation and to investigate whether or not claims could be made against other Defendants. It was clear that the Claimant had suffered damage as a result of negligence and in making their investigations it was not necessary to have the amount of damages that the Claimant could recover in mind. This type of litigation is always "front-loaded" and therefore until the evidence had been obtained, the solicitors were not in a position to advise their client as to prospects of success and the value of the claim. The costs incurred were necessary in order to reach this stage.

19

In Jefferson v National Freight Carriers Plc [2001] EWCA Civ 2082, the Court of Appeal quoted with approval the judgment of H H Judge Alton in the Birmingham County Court on 22 June 2000 in an unnamed case:

"In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost. While it is not unusual for costs to exceed the amount in issue, it is, in the context of modern litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality."

20

That statement by Judge Alton, although made some years ago, is even more relevant today as the rules regarding proportionality are now much more onerous.

21

I looked through the solicitor's file, both at the provisional assessment and prior to the hearing today, and I could see no evidence of any planning in the manner described by H H Judge Alton. The claim was always going to be low value and indeed there is an entry in the documents schedule annexed to the bill dated 31 July 2013 "Conducting a preliminary valuation in the light of the...

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