Thompson v Berkhamsted Collegiate School
| Jurisdiction | England & Wales |
| Judgment Date | 02 October 2009 |
| Neutral Citation | [2009] EWHC 2374 (QB) |
| Docket Number | Case No: HQ06X01882 |
| Court | Queen's Bench Division |
| Date | 02 October 2009 |
[2009] EWHC 2374 (QB)
Before : MR JUSTICE BLAKE
Case No: HQ06X01882
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Non-Parties joined into the action pursuant to CPR 48.2 for the purposes of costs
Andrew Miller (instructed by Berrymans Lace Mawer) for the Defendant
Gordon Wignall (instructed by Irwin Mitchell) for the Non-Parties
Hearing dates: 21 st September 2009
The Hon Mr. Justice Blake :
Introduction
This is an application for orders to be made ancillary to the hearing of a third party costs claim made by the defendant school against the non-parties who are hereafter referred to as the interested parties. It is first appropriate to set out the background to the litigation in which the costs application arises.
On 16 th March 2009, some two weeks into the trial, the claimant, John Thomson, discontinued his claim for damages for injury, loss and damage caused to him through the failure of the defendant, his former school, to take proper measures to prevent him from being bullied. The claimant was born in July 1985. He attended the defendant's school from September 1994 to June 200From the autumn term in September 2001 through to the spring of 2002 representations were made on various occasions by John, then aged 17, and his parents, with whom he lived, to teachers and governors at the school complaining of actions by other pupils and the failure of staff to take any sufficient action in respect of it.
The proceedings that were discontinued on the 16 th March 2009 had begun by writ issued on the 29 th June 2006 and Particulars of Claim dated the 24 th October 2006, whereby damages were claimed for negligence alleged between the years of 1996 to 2002.
The solicitors acting for the claimant in those proceedings were Linder Myers. They were instructed in February 2005. Before they were involved other solicitors had been instructed by the claimant and/or his parents in connection with concerns as to how the school was treating John. Those solicitors were French and Co. They had communicated with the school in connection with alleged professional negligence or personal injury since April 2002 but it appears their retainer had been terminated by both John and his parents by December 200Prior to that termination of retainer there had been an application for pre-action disclosure first intimated in June 2004 and made in November 200The application was dismissed and the Master awarded the school its costs of defending the application and payment on account of £1,500 plus VAT was ordered. That sum was paid by Dr and Mrs Thomson, the claimant's parents who are the interested parties in this matter.
The litigation in which Linder Myers issued the proceedings was funded as regards the claimant's solicitors, leading and junior counsel, by the interested parties. It seems that consideration had been given to funding by the Legal Services Commission at an earlier stage but no such funding resulted.
The defendant school had incurred substantial costs, estimated to have been in excess of £250,000 in defending this action, which they say was wholly misconceived and at the highest would have depended upon facts as to the treatment which the claimant had been subjected which he was unable to prove in his evidence and there was no other material evidence called upon on his behalf to establish that treatment. His father and mother were witnesses on his behalf but on analysis of their evidence it was by and large hearsay evidence, repeating allegations which they say had been made to them by John. By the time the case had been discontinued it was apparent there were substantial problems with respect to any additional evidence that Dr Thomson could give as to John's treatment.
The defendant intimated on the 16 th March 2009 that it was proposing to seek an order for costs against the third parties, pursuant to Section 51 Supreme Court Act 1981 and CPR 48.2.
On 20 th March 2009 the court ordered that the claimant do pay the defendant's costs for the action to be the subject of detailed assessment if not agreed. As the claimant's own case was that he was rendered unemployed and unemployable as a result of the defendant's negligence during his school years there is no reasonable prospect that he will be able to meet these costs from his own resources. On the same date the interested parties were joined as defendants to these proceedings for the purpose only of costs pursuant to CPR 48.2. The court then gave some directions as to pleadings for the grounds of the application and resistance and for the application to be listed before me in due course as the trial judge.
Already on that date, counsel for the interested parties appearing through their own solicitors, Irwin Mitchell, contemplated that there may be issues as to disclosure of material documents in the application and the question of legal professional privilege. That issue has loomed large in the written submissions made in support of this application pursuant to the directions given on the 20 th March 2009 and after.
On the 30 th June 2009 the defendant sought orders of the court requiring Dr and Mrs Thomson to file and serve disclosure statements setting out correspondence between them and Linder Myers and any solicitor previously instructed by either them or the claimant in relation to the subject matter of these proceedings, any correspondence between Dr and Mrs Thomson and any expert or counsel instructed in these proceedings, attendance notes recording meetings, telephone conversations and other dealings with Dr and Mrs Thomson and any solicitor action in relation to the subject matter of these proceedings. Orders were also sought against the claimant with respect to disclosure and any claim that he may make of legal professional privilege. At that time his solicitors Linder Myers were on the record as representing him and it was anticipated that it would be those solicitors who would prepare the relevant documents and the costs of doing so would be met by the losing party in this application.
Skeleton arguments have been served by both counsel for the defendant and the interested parties on the principles which should govern any application for costs pursuant to section 51 and on the sub-issue, the subject of the present application as to whether disclosure should be ordered and how the court should deal with any claim for legal professional privilege that may arise in the course of disclosure.
On the 21 st September 2009 the court heard oral argument on the question and indicated that it would make orders reflecting part of the applications sought by the defendant with reasons to follow. The reasons for that order are given in this judgment.
The jurisdiction to make ancillary orders in cost proceedings
The substantive costs application is governed by CPR 48.2 that requires little by way of procedural formality for the determination for such applications other than the service of the funding party as parties to the application. It is reasonably plain from the case law summarised in the notes in the Civil Practice 2009 to this part of the CPR that what is intended is a summary procedure for the determination for such an application.
No formal procedure is set out for applications for disclosure, cross-examination, service of skeleton arguments and the like. In my judgment this is because any orders that the court considers necessary are made in accordance with its discretionary judgment in pursuit of its inherent jurisdiction having regard to the over-riding objective and the intended summary nature of the proceedings. However, summary proceedings are not a term of art, and such a description is not inconsistent with whatever other orders the court might consider necessary to expeditiously and fairly determine the substantive issue.
Thus it would seem that a hearing of some two days where cross-examination may be ordered is not inconsistent with such proceedings: see PR Records Ltd v Vinyl 2000 Ltd and Ors [2007] EWHC 1721 Chancery, 18 th July 2007 a decision of Mr Justice Morgan at [40]. See also Grecoair Inc v John Tilling and Ors [2009] EWHC 115, Queen's Bench 14 th January 2009 decision of Mr Justice Burton, [42–52]. It is equally plain from those cases that the court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order.
By the end of the hearing in the present matter, the parties were agreed that I had jurisdiction to make the order, but there were competing submissions as to the issues to which I should direct myself in the exercise of my discretion, particularly on the application of the principle of proportionality in the light of the issues in the present case. I am un-persuaded that the appropriate course is to identify the nearest appropriate practice rule applicable to a full trial and add or subtract from the requirements of that rule. I consider that I should apply a high test of what is considered necessary for the fair determination of proceedings that are essentially summary in nature and should be determined speedily after the conclusion of the trial by the trial judge and bearing in mind the over-riding objective. I further recognise that the court's powers are limited where documents are the subject of litigation or legal professional privilege, which it has no power to override. If the court decides that it is necessary and in the interests of justice to make a disclosure order, it may proceed to give a detailed order within its general powers under the CPR to remove outstanding issues that may be the source of...
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