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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Letts v Royal Sun Alliance Plc (Rev 1) [2012] EWHC 875 (QB) (03 April 2012) URL: https://www.bailii.org/ew/cases/EWHC/QB/2012/875.html Cite as: [2012] 3 Costs LR 591, [2012] EWHC 875 (QB) |
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SCCO Ref: CL1006O87 Claim No: OBN00057 |
SENIOR COURTS COSTS OFFICE
ON APPEAL FROM MASTER LEONARD, COSTS JUDGE
Strand, London, WC2A 2LL |
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B e f o r e :
SENIOR COSTS JUDGE HURST
MR COLIN B.E. JAQUE
____________________
Debbie Letts |
Respondent/ Claimant |
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- and - |
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Royal Sun Alliance PLC |
Appellant/ Defendant |
____________________
Mr Robert Marven (instructed by RSA Legal) for the Appellant/Defendant
Hearing dates: 16 March 2012
____________________
Crown Copyright ©
Mr Justice Mackay:
i) Did the claimant issue her claim prematurely and unreasonably?
ii) If she did, on what basis should her costs have been assessed?
"Please note that liability is not in dispute but causation remains a live issue. The circumstances suggests that this was a low velocity inpact; however we are investigating the same at present and will revert to you within the Protocol Period (which we calculate to be 13 January 2010)"
They then indicated that their information was that the impact was "a gentle tap at most" with no visible damage to the vehicles involved, and that the claimants vehicle repair costs amounted to some £480 only (these were settled separately). They therefore contended that all that suggested that little or no injury would have occurred but the letter concluded:-
"However, in an effort to resolve this matter amicably please take instructions on our immediate without prejudice damages offer of £500 made in full and final satisfaction of all causes of action which have or will arise as a result of the above incident. It this offer is accepted within 21 days then we will in addition pay the Predictable Fee Costs"
The offer was made without prejudice to causation. Despite Mr Marven's argument the only reasonable construction of this letter, in my opinion, is that the £500 offer was an inclusive offer covering all aspects the claim, as it says. It therefore was allowing a token sum by way of general damages. The claimant did not respond to this letter, perhaps for that reason.
"It seems to me that in those circumstances at the time of issue the claimant was left not knowing, notwithstanding the promise made by the defendant, what the actual litigation risk was, in particular whether the claimant faced a potentially costly and embarrassing consequences of a "low velocity impact" defence. Although there is a duty for both parties to explore settlement I do accept that there might have been a degree of hesitation on the part of the claimant's solicitors to effectively invite the defendant to raise the "low velocity impact" defence when it had not given an indication that it had intended to do so"
"In addition, we offer to meet your reasonable costs to be assessed if not agreed and reasonably incurred disbursements. For the purpose of clarity, we are seeking to pay predictive costs only due to premature issue and the claimant's solicitors are seeking standard costs"
The acceptance of that offer by the claimant meant that by virtue of r 44.12 (1) (b) a costs order was deemed to have been made on the standard basis. The procedure for assessment under part 45 Section II is itself only available for a "costs only" claim.
a) the conduct of all the parties, including in particular –
i) conduct before as well as during the proceedings and
ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.
"… the costs judge was not entitled simply to rule that she was going to assess the costs of the trial as if the case were on the fast track. So to rule does seem to me to rescind the Recorder's order. I cannot accept that in ruling as she did it can be said that she was simply "assessing costs on a standard basis taking into account that the case should have been allocated to the fast track" which in my view is a permissible approach".
He went on however to say that it may in some cases be a distinction without a difference. I do not consider that the present case is one of them.
"It certainly follows from that [the fact that the consent order provided for assessment on a standard basis] that the Costs Judge was free to rule that the costs would be assessed on the small claims track basis… But, and this is the critical point, in making an assessment the Cost Judge is entitled to take into account all circumstances (see CPR rule 44.5(1), including the fact that the case would almost certainly have been allocated to a small claims track if it had been allocated. In so doing she would have regard to what could or could not be recovered if the case had been so allocated".
"The Costs Judge would not be bound …only to allow the costs as per a case on the small claims track but it would be a highly material circumstance in considering what by way of assessment should be payable".