MS Carolyn Brett v Colchester Hospital University NHS Foundation Trust

JurisdictionEngland & Wales
JudgeMaster O'Hare
Judgment Date07 April 2014
Neutral Citation[2014] EWHC B17 (Costs)
CourtSenior Court Costs Office
Docket NumberClaim No. HQ12X00160
Date07 April 2014
Between:
MS Carolyn Brett
Claimant
and
Colchester Hospital University NHS Foundation Trust
Defendant

[2014] EWHC B17 (Costs)

Before:

Master O'Hare

Claim No. HQ12X00160

IN THE SENIOR COURTS COSTS OFFICE

Thomas More Building

Royal Courts of Justice

Strand

London

WC2A 2LL

Counsel for the Claimant: Mr. Alexander Hutton Q.C. Instructed by Gadsby Wicks

Counsel for the Defendant: Mr. Ken CornessOf Acumension Ltd

APPROVED JUDGMENT

Number of Folios: 32

Number of Words: 2,278

Master O'Hare
1

The case before me is a clinical negligence case. The parties ultimately came to terms and the case was settled on payment of about £250,000 plus reasonable costs. The claimant's bill of those costs totals about £700,000. Just under half that total comprises base costs and the rest comprises certain success fees. I have not looked for it, but I imagine it also includes an after the event insurance premium.

2

The dispute concerns the giving of a notice of change by the Defendant from the solicitors who conducted the case (Kennedys) to the costs lawyer now conducting the costs proceedings, who is Mr Corness of Acumension. It is accepted by the parties that whether or not notice of change was given validly before, I ought to proceed on the basis that, if only as a result of these proceedings, it has been given validly now and therefore the defendant's address for service is now Mr Corness's business address and not Kennedys.

3

Mr Corness's application is that I should set aside the default costs certificate obtained as irregular. His reason for saying that is that he gave a valid notice of change by email before the bill was served and when the claimant went on to serve bill at the former address for service it was acting irregularly and that irregularity has affected the default costs certificate it later obtained. The claimant does not challenge that it was open to the defendant to give notice of change by email and it frankly admits that it has had problems with its email address. On some occasions, some documents sent by email have not arrived, or some attachments of documents have not arrived. The claimant is not challenging the fact that the notice of change was transmitted by email, but it denies it ever received it.

4

The breach of rules the claimant complains of is a breach of the service rule, Rule 6.20. It says that service by email must be in accordance with Practice Direction 6A. Practice Direction 6A, paragraph 4.2, says that a person intending to effect service by email must "first ask the party who is to be served whether there are any limitations to the recipient's agreement" to accept service by email. It gives examples. Are there limitations as to the format in which documents are to be sent, or are there size limitations? It is accepted by both sides that, in this case, the defendant never asked any such questions of the claimant.

5

The defendant's riposte to that is that it has regularly served documents on the solicitors acting for this claimant and on solicitors in other cases, and no complaints about non-compliance with PD6A, para. 4.2 have ever been raised before. The defendant's agents (Acumension Ltd) are themselves willing to accept service by email and they have never received phone calls from anybody else or any other contact with anyone else enquiring what size limitations or what other limitations there may be on their agreement to accept such service. Service amongst those who are willing to accept service by email is commonly done these days without any such formality. The defendant says that the real problem here is not that the defendant did not check whether, on this occasion, service of notice of change by email was permissible. The source of the problem here is the problem the claimant's solicitors were having with their email address.

6

It seems to me that the service by email in this case was valid. The reason it had not got to the awareness of the claimant is something outside the defendant's control and inside the claimant's control. The fact that a telephone call pursuant to PD 6A, para. 4.2 might have had the unintended benefit of notifying the claimant's solicitors of a forthcoming change of legal representative is not determinative. I do not think that such a phone call is a pre-requisite to service by email. I think PD 6A, para. 4.2 is a recommendation of good practice only, and a recommendation which has become of historic interest only. It dates back to a time when the court's own preferred method of electronic delivery was, I think, WordPerfect, something which, at that time, few solicitors used as they had already moved on to Word. Since then, not only does everyone use Word, but everyone is using broadband also and so size limitations are not now a problem either. If PD 6A, para. 4.2 has any continuing practical effect it would merely be to defeat mischief makers who want to send or receive emails on a system which nobody else can read or some similar inconvenience which amounts to an obvious abuse of service by email. That does not make it a pre-condition on...

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