Thomas Hadley (A Protected Party by His Litigation Friend Laura McCarry) v Mateusz Przybylo

Plain language summary (Flesch score over 50). This summary does not form part of judgment but must be included in any reproduction of the judgment.

This judgment is about whether some legal charges can be included in a court budget for a claim. A budget is a document which gives the expected cost of a court case right through to its end. The charges are money which the lawyers want to spend on going to meetings with Case Managers and deputies. The reason they want to spend the money is to keep the Schedule of Damages updated. The charges were included in the Issues and Statements of Case phase of the budget. A phase of a budget is a part of it which relates to a set of steps or actions in the case which the lawyers plan to take. The judge decided the charges are not claimable. The reason is that they do not progress the court case.

On rare occasions, like the transit of Venus or a triple Jovian eclipse but far less predictably, costs budgeting ceases to be a cause of judicial ennui, and raises instead something of interest legally. This case determines one such specific issue in relation to the principles of costs budgeting under the Civil Procedure Rules. In particular that issue is whether the inclusion of solicitor attendance time in a budget, for attending case management meetings with medical and other professionals in the course of management of the Claimant's rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss are in principle costs which may be included in a budget and whether, if so, it is appropriate to include those in the ‘Issues and Statements of Case’ phase of the budget on Form H. The costs in the Claimant's original budget were very substantial, and in that context I also touch on the question of the benefits of a judge ordering that parties must engage in ADR using appropriately qualified professionals in relation, specifically, to the costs budgets.

Mandatory ADR and Costs Budgeting

Before I proceed I will note that in this case, where there is a large budget in a complex and very serious personal injury claim, I took the step of ordering the parties to engage in ADR to seek to resolve issues in the budget before I would budget any outstanding phases. The Claimant's budget exceeded £1m and my view is that a simple obligation to discuss and seek to agree is an insufficient encouragement to parties to focus their minds on really working to resolve issues, where one often sees that (once the time and trouble of attending a costs management hearing has been incurred) the presence of costs professionals at court and immediately before so often narrows issues which could have been narrowed sooner. I therefore directed that:

“The parties shall engage in ADR in respect of the parties' costs (insofar as they are not already agreed), the professionals engaged in the ADR being appropriately experienced/qualified costs professionals, such ADR to be completed by 5pm on 3 March 2023”.

By the time the matter returned to me some time later, the parties had indeed engaged in ADR using qualified costs lawyers and all but one matter had been agreed on the budget, which I think speaks for itself in terms of saving time and money. It also enabled an important point of principle to be identified, and the rest of this judgment deals with that one outstanding issue.

The issue of the inclusion of time costs for fee earner attendance at case management meetings of medical and other professionals, and meetings with or attendance on Court of Protection deputies

The Claimant argues that it is frequently, in its representatives' experience, the case that such charges are allowed to be included in budgets in that section and that such is the practice of other Masters. They contend that attendance by a fee earner at these case management meetings etc are reasonably necessary to progress the litigation because they assist in maintaining the Schedule of Loss as the claim goes along. It is (in my words) something of a ‘live feed’ from the Claimant's care and treatment at medical-professional level and the deputies, to the lawyers. What is claimed in the budget is about 1 hour each week with the Case Manager and 1 hour each week with each of the two Deputies, totalling 3 hours a week in the Issues and Statements of Case phase, as part of work on drafting and updating the Schedule of Loss on an ongoing basis.

The Defendant argues quite the contrary. His representatives argue that as a matter of principle such attendance charges ought to be ruled as inadmissible in a budget. They are not progressive of litigation any more than, say, having lawyers attend every medical treatment appointment would be. They are not properly included. In addition, whether or not in principle ever allowable in a budget, they do not fall within the guidance as to the categories of matter to be included in the Issues and Statements of Case phase in any event. Furthermore, their experience in contrast with that of the Claimants is that such charges are often rejected for inclusion in budgets.

There is no relevant authority which the parties could find to assist me and...