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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cashman v Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB) (11 May 2015) URL: https://www.bailii.org/ew/cases/EWHC/QB/2015/1312.html Cite as: [2015] 3 Costs LO 411, [2015] EWHC 1312 (QB) |
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Claim No: HQ 12X01395 SCCO Ref: AGS10401110 |
QUEEN'S BENCH DIVISION
ON APPEAL FROM
MASTER GORDON-SAKER, SENIOR COSTS JUDGE
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting with
ASSESSOR MASTER CAMPBELL
____________________
MICHAEL RICHARD CASHMAN |
Appellant / Claimant |
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- and – |
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MID ESSEX HOSPITAL SERVICES NHS TRUST |
Respondent / Defendant |
____________________
Mr Marven (instructed by Acumension) for the Respondent / Defendant
Hearing dates: 20/03/2015
____________________
Crown Copyright ©
The Honourable Mrs Justice Slade DBE:
i) Under CPR 36.14(3)(a), interest on the Bill of Costs at 10.5%;
ii) Under CPR 36.14(3)(b), costs of the detailed assessment on the indemnity basis;
iii) Under CPR 36.14(3)(c) interest on the costs of detailed assessment at 10.5%.
The Master observed:
"4. The Defendant's failure to accept the Claimant's offer has led to a delay in payment to the Claimant's solicitors, and has led to the costs of detailed assessment proceedings in terms of the preparation for and attendance at this hearing."
"5. However, in my judgment it would be unjust to require the defendant to pay an additional amount, which in this case would be 10% of the costs which have been allowed, so a figure of about £17,000."
The Master observed:
"6. I think costs have to be treated slightly differently to judgments. Generally, the only issue on detailed assessment is how much. Had the rule permitted me to allow a figure fixed by applying the prescribed percentage to the difference between the sum which the claimant offered to accept and the sum which was allowed, then I think that may have been a just result, but that is not what the rule anticipates. In circumstances where there has been a significant reduction in the claimant's bill, it seems to me that it would be unjust to reward the claimant with an additional amount prescribed by 36.14(3)(d)."
"(4) The provisions of Part 36 apply to the costs of detailed assessment proceedings with the following modifications –
(a) 'claimant' refers to 'receiving party' and 'defendant' refers to 'paying party';
(b) 'trial' refers to 'detailed assessment hearing';
…
(e) a reference to 'judgment being entered' is to the completion of the detailed assessment and references to a 'judgment' being advantageous or otherwise are to the outcome of the detailed assessment."
CPR 36.14 provides:
"(1) Subject to rule 36.14A, this rule applies where upon judgment being entered –
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
(1A) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, 'more advantageous' means better in money terms by any amount, however small, and 'at least as advantageous' shall be construed accordingly.
In addition to the sums awarded under 36.14(3)(a),(b) and (c), CPR36.14(3) provides that:
"(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that the claimant is entitled to –
… (d) an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is –
(i) where the claim is or includes a money claim, the sum awarded to the claimant by the court; or
(ii) where the claim is only a non-monetary claim, the sum awarded to the claimant by the court in respect of costs –
Amount awarded by the court Prescribed percentage up to £500,000 10% of the amount awarded;
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court will take into account all the circumstances of the case including –
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated."
"One could imagine that a court might well think it 'unjust' to order indemnity costs if the individual defendant had rejected a Part 36 offer on the basis of inaccurate information through no fault of his own and, especially, where he has been misled by the claimant or his advisors through (say) non-disclosure of a material fact of document."
There is no suggestion that this occurred in this case.
"It is elementary that a judge who is asked to depart from the norm, on the ground that it would be 'unjust' not to do so, should not be tempted to make an exception merely because he or she thinks the regime itself harsh or unjust. There must be something about the particular circumstances of the case which takes it out of the norm. Naturally one cannot define exhaustively what those circumstances might be. Each case will turn on its own facts."
The starting point is that where rule 36.14(1)(b) applies, the court will make an order that the Claimant is entitled to an award under each of the sub-paragraphs of CPR 36.14(3). It is only if the court considers it unjust to do so that such awards will not be made. Whilst the pre-condition of CPR 36.14(1)(b) for entitlement applies so that if it is met, an entitlement to an order under all sub-paragraphs will be triggered, the disentitlement condition is, in my judgment, to be considered in relation to the payments under each of the sub-paragraphs, (a), (b), (c) and (d).
"In circumstances where there has been a significant reduction in the claimant's bill, it seems to me that it would be unjust to reward the claimant with the additional amount prescribed by 36.14(3)(d)."
Whilst a particular factor under CPR 36.14(4) may carry more weight when considering whether it would be unjust to make an award under the different sub-paragraphs of CPR 36.14(3), in this case no reason was given why a factor rendering it not unjust to make an award under 36.14(3)(a) to (c) should be the factor rendering an award under CPR 36.14(3)(d) unjust. In my judgment the Master erred in relying on the degree of reduction made on assessment to the costs claimed as rendering it unjust to make such an award in circumstances in which the Part 36 offer was lower than the sum at which the costs were assessed.