Nax (A Protected Party, Suing by His Wife and Litigation Friend, Jax) v Max
| Jurisdiction | England & Wales |
| Judge | Master Brown |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] EWHC 3492 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004539 |
[2021] EWHC 3492 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Brown
Case No: QB-2019-004539
and
Anthony Reddiford (instructed by Lanyon Bowdler) for the Claimant
Hugh Hamill (instructed by Keoghs LLP) for the Defendant
Hearing dates: 17 December 2020 and 14 January 2021
Approved Judgment
Note: This judgment follows the handing down of the judgment in private only on 17 February 2021. In circumstances where the parties had referred to without prejudice material it was then inappropriate for the judgment to be handed down in public but agreed that the judgment would be published in public on the resolution of the claim. The claim to which this judgment relates has now been compromised and that compromise has been approved by the Court by order of Master Davison, on 21 December 2021. This order also provides, with the agreement of the parties, that this judgment may now be handed in public. Accordingly, this judgment is now, on 21 December 2021, formally handed down in public.
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.
At the first CMC in this case on 17 December 2020 the Claimant sought various orders in respect of costs, including an order for an interim payment of costs in the sum of some £183,000. These orders were resisted by the Defendants and this is my decision on the issues that arose. The decision is given in private as it contains extensive reference to Part 36 offers and I considered that if the decision were given in public it would not adequately protect the privilege attaching to such offers.
Background facts and issues arising in the claim
The claim arises out of an accident on 2 January 2017 when the Claimant suffered a head injury, multiple fractures to his right hip and femur, and injuries which led to a below-knee amputation of his right leg. Medical evidence in support of the claim has been disclosed in the form of reports from Mr Richard Roach (orthopaedic surgeon) dated 8 October 2017, Dr Simon Ellis (neurologist) dated 3 April 2018, Dr Roger Laitt (neuroradiologist) dated June 2019 and Dr J E Henderson Slater (neurological and prosthetic rehabilitation expert) dated 2 April 2018. Dr. Ellis considered that the Claimant had sustained moderate to severe brain injury; he is said have problems with concentration and communication and to lack capacity to litigate and to manage his financial affairs.
The Claimant was 23 at the date of the accident and is now aged 27. I was told that the underlying evidence suggests that he was riding a motorcycle along a road in Shrewsbury wearing a helmet. It is said that he cannot recall the immediate circumstances of the collision. The First Defendant, who was insured by the Second Defendant, was, I am told, turning into a side road from a main road when the collision happened. It appears that the helmet came off in the course of the collision. Primary liability was admitted on 23 November 2018.
In their Defence the Defendants admit that the Claimant suffered serious and life-changing injuries and make allegations of contributory negligence. No medical evidence has yet been served by the Defendants but they dispute the assertion that the Claimant has lost capacity.
The Claimant's solicitors were instructed shortly after the accident. The claim is funded on a CFA with an ATE (‘After The Event’) insurance policy with an indemnity for adverse costs orders and the Claimant's disbursements up to £100,000; such an indemnity, as I understand it, applies as between insurer and Claimant's litigation friend. It is said that the conditions necessary for payment as between solicitor and litigation friend will have been met if an award for an interim payment of costs is now made.
Proceedings were issued on 17 December 2019 close to the expiry of the primary limitation period. The Claim Form was served 8 April 2020. This was followed by the Particulars of Claim and a preliminary Schedule of Loss, which were served on 14 May 2020. Judgment has been entered for primary liability against the First and Second Defendants and directions have been given for trial in a window from 4 April 2022 and 24 June 2022.
The Defendants make two allegations of contributory negligence. First, it is said the Claimant failed to wear a properly fitted and/or properly adjusted and/or securely fastened motor-cycle helmet and that if he had done so, he would have suffered a lesser injury. Second, it is alleged that the Claimant failed to wear suitable protective footwear and if he had done so, he would have avoided the serious open fractures which he sustained to his feet and would have avoided the need for amputation.
The preliminary schedule seeks a sum close to £8 million. Claims are made for the costs of prosthetics, loss of earnings, care, case management and accommodation and the costs of a deputy. The costs of case management have been paid direct by the insurers and some heads contain a TBA element, An order has been made approving interim payments of £341,000 to date, a further £10,000 having been agreed after the hearing on 17 December 2020.
The costs budgeting documents suggest that sums have already been spent by the Defendants obtaining medical reports but Mr. Hamill told me that the Defendants had not received their finalised medical evidence. In any event a timetable has been set for the service of evidence leading to trial.
The claim has not yet been costs budgeted although costs budgets have been served. The Claimant's incurred costs as at 8 November 2020 were put at some £399,074 and the total costs are put at some £1,228,769 to which VAT is, I assume, to be added together with the costs of drafting the costs budget and the costs budgeting process (claimed at 1% and 2% respectively of the budget.) The incurred costs of the Defendants are put in their budget at some £174,392 and the total costs are put at some £494,819 plus the costs budgeting costs at 1% and 2% (it is perhaps to be assumed that no VAT will be claimed on these sums). These budgets, which have not been approved, will inevitably need some revision as the costs budgeting did not go ahead as originally listed and a time estimate for trial had been estimated by the Defendants at 10 days but has been agreed at 8 days.
Relevant provisions of the CPR
The relevant provisions of the CPR are at Part 44.2 and provide as follows:
Court's discretion as to costs
(1) The court has discretion as to—
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs—
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(3) …
(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes—
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction—Pre-Action Conduct or any relevant pre- action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
(6) The orders which the court may make under this rule include an order that a party must pay—
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.
(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.
(8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.
Relevant Decisions
An order for an interim payment of costs was made by HH Judge Robinson in X v Hull & East Yorkshire Hospitals NHS Trust (unreported) in a clinical negligence case concerning a birth injury. The claimant had been born on 13 October 2007 and judgment on liability for 90% of the value of the claim was approved on 10 December 2012. HH Judge Robinson said as follows:
30. In my judgment, rules 44.2(1) and 44.2(2) are wide enough to allow the Court to make an order for costs of the kind sought by the Claimant:
(1) The discretion conferred by rule 44.2(1) relates to the questions whether costs are payable, the amount and when the costs are to be paid.
(2) Rule 44.2(2) sets out the general rule that the unsuccessful party pays the costs of the successful party.
31. Rule 44.6(c) gives the court power to order...
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