West & Demouilpied v Stockport NHS Foundation Trust

This case provided guidance regarding two key areas, the recovery of block rated ATE Premiums and proportionality under the ‘new’ test of proportionality, which came in a mere 6 years ago.

Legal practitioners have had very little guidance on proportionality in the six years leading to this Judgment.

However, just a few weeks prior to this Judgment being given, guidance was received from Malmsten v Bohinc, which confirmed that the Court should  take a step back at the end of an assessment and weight is to be given to the relevant factors as contained within CPR 44.3; no mention of CPR 44.4 though and the ‘eight pillars of wisdom’.

The case of West & Demouilpied goes further than the guidance in Malmstem and provides that:

• There are certain costs which are “unavoidable” / “inevitable” / “an irreducible minimum without which the litigation could not have been progressed” / “fixed”. These costs are to be excluded from the Court’s consideration on proportionality; the Court suggested Court Fees and reasonable block rated ATE Premiums would fall into this category. However, it was stated that the Court may account for these exclusions within the global figure by reducing other items which were included within the proportionality assessment. On a further note, the Court did expressly state that it was not re-introducing the test under Lownds.

• The Court will undertake a line by line assessment of the Bill of Costs, assessing the reasonableness of each item. The Court may, if it is appropriate and convenient when undertaking the line by line assessment, address the proportionality of that item at the same time.

• Following the line by line assessment on the Bill of Costs, the Court will have a global figure which it considers to be a reasonable sum. This assessment is to include an assessment of every item, even the costs which would fall under the category described in point 1.

• Unlike Malmstem, the Court is to have regard to both CPR 44.3(5) and CPR 44.4(1) and assess the proportionality of the sum referred to in point 3. If that sum is found to be proportionate, then no further assessment is to be undertaken. However, if the Court finds that the sum is not proportionate then a further assessment is to be undertaken; this is not a further line by line assessment.

• The Court will consider the various categories of costs incurred “such as disclosure or expert’s reports, or a specific period where particular costs were incurred, or particular parts of the profit costs”, the costs referred to in point 1 are to be excluded from this further assessment. The Court will consider the various categories and when considering a category, assessing whether the costs incurred were disproportionate, if they were then an appropriate reduction is to be made. Once these further reductions have been made the resulting sum will be final. The Court made clear that no further assessment or standing back approach was to be undertaken as this would amount to “double counting”.

• In relation to the ATE Premiums, the Court provided guidance in relation to block rated ATE Premiums. The Court considered that reducing block rated ATE Premiums on proportionality grounds would be inappropriate and gave two reasons for the same. “Firstly, being a block-rated policy, the amount of the reasonable premium bears no relationship to the value of the claim, much less the amount for which the claim was settled. Secondly, ATE insurance is critical to access to justice in clinical negligence claims”.

Following this Judgment, challenges to  block rated ATE Premiums will decrease as the law is now very clear.

However, I do foresee some satellite litigation over what costs fall into the category described in point 1. The Court provided very little guidance on the costs which are not to be included within the assessment of proportionality, save for reasonable block rated ATE Premiums and Court Fees. Many Receiving Parties will now argue that items were “unavoidable”, and many paying parties will say they were “avoidable” – the fun continues!

Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB)

This case, which was before The Honourable Mrs Justice Slade BDE, related to an appeal from the Judgment of Deputy Master Keens from October 2018, wherein the costs were assessed at circa £88,000.00; reduced from just over £122,000.00. The Claimant’s Bill of Costs included costs of attending two Pre-Inquest Reviews as well as the Inquest itself.

The claim was for damages for breach of Article 2 of the ECHR, negligence and misfeasance in public office following the death of a relative of the Claimants. The claim was settled for just over £18,000.00 prior to any Letter of Claim.

In respect of the costs litigation aspect of the claim, the Defendant appealed the Judgment of Master Keen on two grounds:

1. Deputy Master Keen erred in law in concluding that the £88,356.22 ordered to be paid by the Defendant was proportionate within the meaning on CPR 44.3(5) and that Deputy Master Keen failed to take into account CPR 44.3(2).
2. Deputy Master Keen wrongly accepted the Claimants’ argument that the ‘general costs of the inquest’ were recoverable costs of the action. By wrongly holding that the Inquest was ‘the battleground’ for the claim, Deputy Master Keen was led into the error of allowing the vast majority of the Inquest costs as costs of the claim.

The Defendant contended that the costs were to be assessed by reference to Kazakhstan Kagazy Plc v Zhunus [2015] EWHHC 404, wherein it is provided that the costs payable are;

“the lowest amount which [the receiving party] could reasonably be expected to spend in order to have the case conducted and presented proficiently having regard to all the circumstances”

The  Defendant also contended that the court was not bound by decisions made prior to the introduction of the Jackson reforms, Mrs Justice Slade disagreed at paragraph 44.  

“I disagree. In my judgement there is no reason to disregard previous authorities where and insofar as they deal with considerations in the current rules of court which are to be applied when assessing costs”

At Paragraph 46 Mrs Justice Slade referred to guidance provided in Roach and Anor v Home Office [2010] 2 WLR 746 and Re Gibson’s Settlement Trusts [1981] Ch 179.

“These authorities emphasise the need to identify the issues raised in the civil claim and the relevance of matters in other proceedings, the inquest in Roach, or procedures, in Gibson, to determine as a first question, whether any of those costs can in principle be claimed in the civil proceedings. Once the threshold of relevance has been passed, the costs judge will decide whether the costs claimed in respect of, in this case, the Inquest, were proportionate to the matters in issue in the civil proceedings. As for the amount of those costs, those which are disproportionate may be disallowed or reduced even if they were reasonably and necessarily incurred.”

This confirmed that the cost of attending an Inquest had to be relevant to the civil claim before the issue of proportionality was considered. Rather than the costs as a whole being assessed under the proportionality test.

Further, it was confirmed that no two cases are the same when assessing the recoverability of the costs of an Inquest in a civil claim, “It is trite but important to emphasise that each application for costs in a civil claim and related to an Inquest must be determined on its own facts”. This is as per Roach.

Mrs Justice Slade later differentiated the current claim from that of Kazakhstan Kagazy, due to this claim being about more than money.

When providing her Judgment, Mrs Justice Slade allowed ground 2 of the appeal in so far as two specific items within the Claimant’s Bill of Costs (items 68 and 69, which were documents time), where Deputy Master Keen had undertaken a broad-brush assessment rather than assessing the relevance of each cost ( the documents time claimed at items 68 and 69 had not been split into categories or subjects).

In relation to ground 1 of the appeal, Mrs Justice Slade confirmed “Deputy Master Keen did not err in taking into account the issues raised in the civil claim were not only financial but were of important to the deceased family”. The Defendant themselves acknowledged this claim was not just about the money,

By virtue of allowing ground 2 of the appeal, ground 1 of the appeal was also allowed in so far as the total costs awarded following re-assessment of items 68 and 69 were to be assessed.

This decision makes sense, as the relevance of the costs of attending the inquests are to be considered; this is established law. However, this was not undertaken as Deputy Master Keen adopted a broad-brush approach in relation to items 68 and 69 of the Bill of Costs without considering the relevance of the time claimed within the documents schedule.

Furthermore, the Court recognised that the claim was much more than just a financial claim to the Claimants. This will be welcome news to Claimant lawyers dealing with low value matters; which carry  that element of importance or justice for the Claimant which cannot be truly quantified in monetary terms.  

This blog was written by Matthew Waring who is an Associate in the Costs and Litigation Funding Team at Clarion. Matthew can be contacted on 0113 288 5639 or at Matthew.Waring@clarionsolicitors.com