Williams v Jervis (First Ruling on Costs)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roderick Evans |
| Judgment Date | 30 July 2009 |
| Neutral Citation | [2009] EWHC 1837 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ05X01838 |
| Date | 30 July 2009 |
[2009] EWHC 1837 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Roderick Evans
Case No: HQ05X01838
Mr Marcus Grant (instructed by Dickinson Solicitors) for the Claimant
Mr David Platt (instructed by Halliwells LLP) for the Defendant
Hearing dates: 23 rd April 2009
st RULING ON COSTS
Judgment in this case was handed down on 8 th October 2008. The claimant was successful and on the basis of a finding of 100% liability judgment was entered in her favour in a sum a little under £512,000.
There remained the issue of costs. One aspect of costs which has always been uncontroversial is the costs of the claimant's unsuccessful attempt to adduce further evidence after each party had closed its case and filed closing submissions (see paragraph 14 of the judgment). The defendant's costs of and occasioned by that attempt must be borne by the claimant. Those costs will be on the standard basis.
The remaining costs of the case, like so much in this action, have been the subject of prolonged dispute.
The defendant's initial attitude was that it could not resist an order for costs on the standard basis. However, on 7 th October 2008 Christopher Dickinson, the claimant's solicitor, filed a witness statement in which he sought orders:
a) That the defendant pay the claimant's costs on the indemnity basis
and
b) That the claimant be given time to consider whether she should issue an application seeking to join Dr Michael Gross to the proceedings pursuant to CPR 48.2 for the purposes of costs only.
At the hearing on 8 th October 2008 the claimant withdrew the second of those applications but wished to pursue the first.
Mr Platt for the defendant was not in a position to deal with that matter at the hearing and sought time to marshal his arguments. Of course, the defence were given time and on 7 th November 2008 Hugh Mullins, the partner in Halliwells having conduct of this matter on behalf of the defendant filed a witness statement in reply in which he sets out arguments as to why any order for costs made against the defendant should be on the standard basis and goes on to develop an argument that because of the manner in which the claimant conducted the proceedings the claimant should recover only 60% of her costs from the defendant.
On 20 th November 2008 Mr Dickinson filed a 23 page witness statement in reply rejecting the criticisms made against him, justifying his conduct of the claimant's case and giving further particulars of his criticisms of the defendant – in reality criticisms of the defendant's insurance company and the solicitors instructed – to justify his continuing application for costs on the indemnity basis.
I heard oral argument on these matters on 23 rd April 2009.
The approach to making an order for costs
The award of costs is a matter within the courts discretion ( CPR 44.3.1) and although the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party the court may make a different order depending upon the circumstances of the case ( CPR 44.3.2). The circumstances to which the court should have regard when deciding what, if any, order as to costs it should make include the conduct of the parties both before and during the proceedings, whether it was reasonable to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or defended a particular issue. Whether a successful claimant has exaggerated his claim is also relevant ( CPR 44.3.4 and 5).
An order for costs may be made in a variety of forms. A party may be ordered to pay a proportion of or a fixed sum towards the costs of another party; an order can be made in relation to costs of a distinct part of the proceedings but where a court is considering making such an order it should, if practicable, make an order for payment of a proportion of the other party's costs or of a stated amount in respect of those costs ( CPR 44.3.6 and 7).
The court may order costs to be paid on the standard basis or the indemnity basis. The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that in addition to costs being reasonably incurred they should also be proportionate to the sums and issues at stake in the litigation and in the event of the assessment judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.
The Court of Appeal has declined to define the circumstances in which a court could or should make an order for costs on the indemnity basis. In Excelsior Commercial and Industrial Holdings Ltd –v- Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879 Lord Woolf, Chief Justice, said:
“This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm. That is the critical requirement.”
It is, therefore, important to bear in mind, firstly, that an order for indemnity costs should not be made simply because the paying party has been found to be wrong or his evidence has been rejected in preference to that of the receiving party and, secondly, that when assessing the reasonableness of the conduct of the paying party to see whether it is outside the norm for such cases, one must avoid an assessment based on hindsight i.e. assessing the conduct with the knowledge of the outcome of the case and with knowledge of how a particular issue was ultimately resolved.
With those principles in mind I turn to deal with the submissions of the parties and I start with those of the defendant.
The defendant's submissions
In support of their contention that the claimant should recover no more than 60% of her costs the defence rely upon my finding that the claimant lied about her signing the Nursing and Midwifery Council Notification of Practice form (paragraph 56 of the main judgment) – a document which came to light following enquiries by the defence rather than disclosure by the claimant – and my finding that the claimant exaggerated her symptoms (paragraph 59). Taking these findings and paragraphs in isolation is not helpful. Each has to be looked at in the context of that passage in the judgment which extends from paragraphs 56 – 61 inclusive. Neither the lie nor the exaggeration, for the reasons set out in the judgment, is of the sort which in the circumstances of this case is relevant to costs. The defence also point out that the claimant's own assessment of how she was regarded at work before the accident was rejected (see paragraphs 38 and 39 of the judgment). Again, however, this is not a matter which in my view should be reflected by the kind of order the defence seek.
Mr Mullins goes on at paragraph 32 of his statement to complain that the claimant persisted with a factual allegation that was not made out and was always nothing more than assumption. He is referring to the fact that the claimant reported that her car had been propelled 20 feet forward and rotated through 90 degrees by the impact. It is correct that the claimant repeated this account to various medical experts but it was made clear in her first witness statement that that account was based, in part at least, on what she had been told by a garage mechanic. For the reasons I expressed in paragraph 33 of the judgment it was not possible or relevant to make a firm finding on how far forward Miss Williams' car was shunted by the collision. No criticism relevant to costs can be made of the claimant about these matters.
The need for otological evidence arose late in the history of this case and that is a matter about which the defence complain saying that they were forced to deal with this matter only months before trial and were unable to secure the services of their preferred expert. The claimant states that there were two reasons for seeking the opinion of a consultant otological physician. Firstly, Mr Price indicated in conference in August 2007 that he could not comment definitively by reference to irrefutable objective scientific evidence whether or not the claimant did have a peripheral vestibular lesion and, secondly, in October 2007 the defence served Dr Gross's report that cast doubt on whether the claimant had suffered any vestibular injury and which concluded that she was a malingerer. The precise aetiological testing carried out by Dr Savundra was able to confirm that there was evidence of a peripheral vestibular lesion and Dr Yeoh, instructed on behalf of the defendant, later agreed that the claimant had sustained such an injury in the accident. While I accept that it is undesirable that new medical issues should be raised late in the history of a case and that further medical experts should be instructed shortly before trial I cannot see that in the circumstances of this case the way in which this matter developed should sound in costs.
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