![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Senior Courts Costs Office) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Connaughton v Imperial College Healthcare NHS Trust [2010] EWHC 90173 (Costs) (30 July 2010) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2010/90173.html Cite as: [2010] EWHC 90173 (Costs) |
[New search] [View without highlighting] [Printable RTF version] [Help]
SENIOR COURTS COSTS OFFICE
London, EC4A 1DQ |
||
B e f o r e :
____________________
MARY CONNAUGHTON |
Claimant |
|
- and - |
||
IMPERIAL COLLEGE HEALTHCARE NHS TRUST |
Defendant |
____________________
Mr Vinsen (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing date: 28 June 2010
____________________
Crown Copyright ©
Master Haworth:
BACKGROUND
THE ISSUES
i) Does the CFA agreement cover the Claimants application for pre-action disclosure?
ii) Can costs be recovered in the absence of a "win" as defined in the CFA agreement?
iii) Can costs be recovered where, as in this case, the Claimant is not proceeding against the Defendant in her claim for damages, but is proceeding against another party?
FACTS
"What is covered by this Agreement:
- Your claim against your opponent for damages for personal injury suffered on 2 September 2008.
- Any appeal by your opponent.
- Any appeal you make against an interim order.
- Any proceedings you take to enforce a judgment order or agreement.
- Negotiations about and/or a Court assessment of the costs of this claim.
What is not covered by this Agreement:
- Any counter-claim against you.
- Any appeal you make against the final judgment order.
Paying us:
If you win your claim, you pay our basic charges, our disbursements and a success fee. You are entitled to seek recovery from your opponent of part or all of our basic charges, our disbursements, a success fee and insurance premium, as set out in the document "What You Need to Know about a CFA". Provided that you comply with your obligations under this agreement, we agree to limit our basic charges, disbursements and success fee to the amounts recovered in respect of those items of costs from your opponent."
"What do I pay if I win?
If on the way to winning or losing you are awarded any costs, by agreement or Court order, than we are entitled to payment of those costs, together with a success fee on those charges if you win overall.
Basic charges
These are for work done from now until this agreement ends. They are subject to review.
Explanation of words used
(c) Claim
Your demand for damages for personal injury, whether or not Court proceedings are issued.
(j) Lose
The Court has dismissed your claim or you have stopped it on our advice.
(o) Win
Your claim for damages is finally decided in your favour, whether by a Court decision or an agreement to pay you damages, or in any way that you derive benefit from pursuing a claim."
" IT IS ORDERED THAT:
(a) Whilst the solicitor for the Defendant was only served with a copy of the Notice of Application and date of hearing on 22 December 2009, the said solicitors had written to the solicitor for the Claimant on 18 November 2010 stating that they were no longer instructed in this matter.
(b) On 26 November 2009, the solicitor for the Claimant wrote directly to the Defendant notifying it of the intention to pursue this application.
(c) The solicitor for the Claimant has conducted this application under the terms of a Conditional Fee Agreement.
(d) The Defendant has raised a substantive issue as to the entitlement of the Claimant under the terms of such agreement to recover any costs in respect of an application for pre-action disclosure.
(e) On the material before the Court, it is appropriate, pursuant to Part 48.1(3) of the Civil Procedure Rules 1998 to order, in principle, that the Defendant should pay the Claimant's costs of the application;
(f) The summary of assessment of the Claimant's costs, as set out below, is subject to determination of the issue as to the Claimant's entitlement under the terms of the Conditional Fee Agreement retainer to recover costs from the Defendant."
made the following order:
1) Subject as stated above, the Defendant shall pay the Claimant's cost of the application assessed in the sum of £2,206.41.
2) The file be transferred to the Supreme Court Costs Office for determination of the issues relating to the nature and extent of the Claimant's retainer and entitlement to recover costs from the Defendant in respect of the Pre-Action Disclosure Application.
THE LAW
"Disclosure before proceedings start:
31.16(1) This rule applies when an application is made to the Court under any Act for disclosure before proceedings have started.
(2) …
(3) The Court may make an order under this rule only where:
(a) The respondent is likely to be a party to subsequent proceedings;
(b) The applicant is also likely to be a party to those proceedings
(c) …
(d) Disclosure before proceedings have started is desirable in order to:
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings or;
(iii) save costs.
Orders for interim remedies
25.1 The Court may grant the following interim remedies:
(i) An order under Section 33 of the Senior Courts Act 1981, or Section 52 of the County Courts Act 1984 (Order for Disclosure of Documents or Inspection of property before a claim has been made)."
CLAIMANT'S SUBMISSIONS
"If on the way to winning or losing, you are ordered any costs by agreement or Court order, then we are entitled to payment of those costs, together with a success fee on those charges if you win overall.
Therefore in the view of the Claimant, it was abundantly clear that a "win" was not required to recover costs. The Claimant's liability to pay the costs of a PAD application is limited to what the Court awards pursuant to CPR 43.2(3)."
DEFENDANT'S SUBMISSIONS
DISCUSSION AND CONCLUSIONS
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact", but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification …
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meaning of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd –v- Eagle Star Life Assurance Co Ltd [1997] AC 749.
(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had."
"It is in my view well established that work done prior to commencement of an action generally, when you are talking generally outside, not necessarily limited to a CFA circumstance, would be covered and recoverable; the work you have to do in preparation for a case if you issue it, will be recovered. In my view the CFA would generally cover damages and costs, but would include the costs incurred throughout including preparation for and in contemplation or in anticipation of proceedings. If a pre-action application proves necessary and is reasonably undertaken, then in my view a costs order maybe expected, particularly if when one looks at 48.3(b) if a pre-action protocol has not been complied with."
15. In my view, the indemnity principle is not breached, because the Claimant is entitled to recover costs from the individual when the individual is entitled to recover those costs from the defaulting party, or in this case, this Defendant……………. … . He is looking simply for the costs of issuing this application. I say principally. In my view I am persuaded by an application of Part 48 and paragraph 13(b), and the fact that that paragraph refers to compliance with the protocol. There was not compliance. I have not heard any compelling reason to explain why there was not compliance. In my view the Claimant was then perfectly entitled to make an application which the Claimant did.
16. In my view, the Claimant is perfectly entitled to seek the costs of that in principle. Those costs would be limited to base costs and the costs would then need to fall to be assessed. In my view, 48.3(b) which I have been referred to deals with the assessment of the costs, not the principle of the application of the costs liability…………………….."
"(4) The work undertaking in this application says the Defendant is not covered by the agreement. On page 1 of the agreement, about 8 lines down, it says "What is covered by this agreement," and then there are five particular matters listed. The Defendant says this application does not fall within the ambit of any of the five areas as to what is covered.
(5) Not surprisingly the Claimant takes a different view and argues that this application is intrinsically linked with that which the Claimant wants to do in bringing a claim against a proposed Defendant. It is not possible, argues the Claimant, to separate the two.
(6) I do not accept that argument advanced by the Claimant. The application is for pre-action disclosure. If it is pre-action disclosure, then it cannot by definition be the action, because what is sought proceeds and pre-dates the issue of any substantive claim.
(9) I reject the suggestion that a pre-action matter is intrinsically linked with a post-issue matter that clearly would have been covered by a CFA. The Claimant fails. The Claimant has not provided evidence that it is covered in respect of this work by the CFA."
"25. In my view the words "your claim against Hertz UK Ltd Car Hire for damages for personal injury suffered on 7 January 2000" meant the "the claim for damages arising out of the accident and which was being handled by Hertz", and therefore must be taken to include the claim that was subsequently issued against Mr Prescott. The intention of the parties is obvious. The 2002 agreement was to provide funding for continuation of the claim which had been the subject of correspondence between Pinto Potts and Hertz for the proceeding three years. There was only ever one "claim"."
"If on the way to winning or losing you are awarded any costs by agreement or Court order, then we are entitled to payment of those costs together with a success fee on those charges if you win overall."