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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hadley v Przybylo [2024] EWCA Civ 250 (15 March 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/250.html Cite as: [2024] WLR 4761, [2024] 1 WLR 4761, [2024] EWCA Civ 250, [2024] Costs LR 319, [2024] WLR(D) 137 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
Master McCloud
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DINGEMANS
and
LORD JUSTICE BIRSS
____________________
Thomas Hadley (A Protected party by his Litigation Friend, Laura McCarry) |
Appellant |
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- and - |
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Mateusz ![]() | Respondent |
____________________
Andrew Davis KC (instructed by Keoghs LLP) for the Respondent
Hearing date: 28 February 2024
____________________
Crown Copyright ©
LORD JUSTICE COULSON:
1 Introduction
2 The Chronology
3 The Master's Judgment
"
- Preparation of Claim Form
- Issue and service of proceedings
- Preparation of Particulars of Claim, Defence, Reply, including taking instructions, instructing counsel and any necessary investigation
- Considering opposing statements of case and advising client
- Part 18 requests (request and answer)
- Any conferences with counsel primarily relating to statements of case
- Updating schedules and counter schedules of loss
- Amendments to statements of case"
"In particular that issue is where the inclusion of solicitor attendance time in the budget, for attending case management meetings with medical and other professionals in the course of management of the claimant's rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss, are in principle costs which may be included in a budget and whether, if so, it is appropriate to include those in the 'Issues Statements of Case' phase of the budget on Form H."
"…That breaks down to 48 hours on the schedule, counsel and so on (£12,900). The rest is expense of attending on the deputies for health and welfare and finance, and the case manager. Some 60% is for the case manager and 20% each for attendance on, effectively meetings with, deputies. All this was framed as being part of the maintenance of the Schedule of Loss."
"10. I accept the Defendant's argument at hearing that it is a general principle that 'costs' are legal costs which are incurred in the progression of litigation. They may be pre-action, for example, or they may be reasonably incurred but found in hindsight not to be useful, yet such costs can still be 'progressive' even if they rule out some things which are then not pursued. But costs which are inherently non-progressive are not in my judgment 'costs' properly claimable in a budget between the parties. It is not unusual in assessing a bill of costs to disallow items with the brief statement 'non-progressive', for example and it seems to me that if costs fall into that category then they are not suitable for inclusion in a budget.
11. If costs are progressive, then for the purposes of budgeting one has to proceed to fix the reasonable budget sum as a best judicial estimate of future costs, doing the best one can without the assistance of actual material showing work done, such as a Costs Judge would have at a detailed assessment. But the question "are these in principle claimable at all as costs?" is a latent but usually uncontentious one lurking in any costs decision as to quantum whether in budgeting or assessment of costs. It has raised its head in this case."
"14. The argument that simply attending on these individuals is an 'integral part' of producing the Schedule of Loss, and hence allowable for inclusion as a budget item under that head is weak, in my judgment. Information about case management, or incurred expenses of such things as money management can be achieved by the occasional letter to the case manager or relevant deputy or from obtaining documents for later disclosure, in the disclosure phase, and ultimately also in the Case Manager's or Deputies' witness statements which may or may not be needed for the purposes of a formal deputyship expert. Those are qualitatively different things from attending meetings for input into a Schedule of Loss, as is claimed here on a very significant scale. Thus, nothing in this decision says that in principle some phases in a budget cannot include engagement with case managers or deputies, such as for disclosure or witness statements and occasional letters. Past deputyship costs one notes are a matter of fact based on invoices possibly assessed by the SCCO, and the future cost of deputyship is a matter for a deputyship expert…
16. Thus, the (numerous) attendances of the sorts proposed here do not in my judgment progress litigation in this case. Note that I am not here saying that these costs are 'unreasonable' or 'disproportionate': those would be the tests I would apply if I were accepting that in principle they were 'costs' for the purposes of a budget in the first place.
17. If (per contra) I had decided that these sums of proposed expenditure in principle would progress the litigation then I would indeed have next to consider whether the proposed extent of attendance was reasonable and proportionate. Were I to have to decide that I would say that the sum and the extent of proposed attendance is unreasonable and would have striven to budget a lesser sum. However, that question strictly does not arise given my decision above."
4 Clearing The Undergrowth
4.1 The Raising of the Point Originally
4.2 The New Evidence
4.3 Which Phase?
4.4 Damages, not Costs?
5 The First Issue: Did The Master Decide A Point Of Principle?
6 The Applicable Principles
6.1 General
"…It seems to me that the discretionary regime available to costs judges in this context, and the application of section 51 of the Supreme Court Act 1981 and CPR r 44, will not be advantaged by further guidelines (so-called): each case should properly be decided by reference to its own circumstances. I am fortified in this view by the suggestion, as to which I express no opinion, that what is decided in these cases (which relate solely to inquests preceding a subsequent resolution of civil proceedings) may also be relevant in other contexts: for example, attendance prior to civil proceedings at a criminal trial involving death by dangerous driving or a criminal trial involving health and safety issues. Better, I think, to leave it to costs judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in In re Gibson's Settlement Trusts [1981] Ch 179."
6.2 Costs in Respect of Rehabilitation
"Effective dialogue concerning rehabilitation progress and related challenges are a central part of case planning under the SIG.
The defence insurer / lawyer should be encouraged to attend periodic meetings/ conference calls with the case manager and claimant lawyer to provide an oral update on rehabilitation progress and current rehabilitation goals and objectives.
What are the benefits of such a level of access and transparency?
1. Improved dialogue around rehabilitation may serve to control the amount of case reporting obligations on the case manager, over and above what is clinically required on good rehabilitation practice.
2. Interim funding requests can be discussed and understood (or even volunteered by the defence insurer) and agreed promptly.
3. Delays in funding can be avoided.
4. The environment encourages fact to replace perception and the case manager gains first-hand experience understanding of any areas of concern.
5. Medico legal assessments can be planned and programmed to dovetail with the rehabilitation work.
6. Medico legal driven case manager reporting time can be minimised.
7. A forum is created that enables views and suggestions from experienced medical legal experts can be fed into the case manager in a timely manner to the benefit of the claimant.
Insurers who are given this high level of access to the rehabilitation should always act in the best interests of the rehabilitation; if they disagree with the plans or actions the meetings are a perfect opportunity to air these in an open and transparent manner in order to try to resolve the concerns by dialogue.
This approach improves the way the rehabilitation process dovetails with the claim process and is just another example of the way that route mapping and collaborative working has developed over time as the Guide has been applied in practice.
Many claimant lawyers and defence insurers successfully progress cases on this basis. At the Serious Injury Guide participant workshop on 21 November 2018 there was universal support for this approach to rehabilitation, if it could be achieved."
"2.1 The claimant solicitor's obligation to act in the best interests of their client extends beyond securing reasonable financial compensation, vital as that may be. Their duty also includes considering, as soon as practicable, whether additional medical or rehabilitative intervention would improve the claimant's present and/or longer-term physical and mental well-being. In doing so, there should be full consultation with the claimant and/or their family and any treating practitioner where doing so is proportionate and reasonable. This duty continues throughout the life of the case, but is most important in the early stages."
"7.5 With catastrophic injuries, it is especially important to achieve good early communication between the parties and an agreement to share information that could aid recovery. This will normally involve telephone or face-to-face meetings to discuss what is already known, and to plan how to gain further information on the claimant's health, vocational and social requirements. The fact that the claimant may be an NHS in-patient should not be a barrier to carrying out an INA."
6.3 Applicable Principles
(a) The recoverability of costs will depend on the application of the three criteria in In re Gibson's Settlement Trusts;
(b) The reasonable and proportionate costs of the claimant's rehabilitation which meet these criteria will generally be recoverable: see Brown v Alexander and both the Serious Injury Guide and the Rehabilitation Code;
(c) The precise amount of recoverable time spent by a solicitor in respect of rehabilitation will always depend on the facts of each individual case: see Roach. It is unwise to set out guidelines or rules that are intended to apply in every case: again, see Roach.
(d) Therefore, as a matter of common sense, it would be unusual to rule that any generic category of cost was irrecoverable in principle; by the same token, it would be wrong to assume that, even if the generic category is recoverable, every item that made up that category was automatically recoverable. In every case, it will depend on the facts.
7 Analysis
7.1 Ground 1: The Applicable Test as to Recoverability
"…But costs which are inherently non-progressive are not in my judgment 'costs' properly claimable in a budget between the parties It is not unusual in assessing a bill of costs to disallow items with the brief statement 'non-progressive', for example and it seems to me that if costs fall into that category then they are not suitable for inclusion in a budget."
The claimant's argument is that the categorisation of costs between "progressive" and "non-progressive" costs is a division unknown to the authorities. It is not the test set out in In re Gibson's Settlement Trust. Therefore, it is said that the Master erred in principle when, at [12] and [13], she said that a fee earner attending rehabilitation case management meetings was not progressive and therefore was not recoverable as costs.
7.2 Ground 2: Are These Costs of Attendance Recoverable in Principle?
8 Disposal
Note 1 She also included within this category attendance at “meetings with financial and Court of Protection deputies said to be part of inputting into a Schedule of Loss”. So when we refer below to “rehabilitation case management meetings” we include these meetings too. [Back] Note 2 As noted in the commentary at paragraph 3.12.5 of the White Book 2023, it is only in exceptional cases that a court can reduce, as part of a budgeting exercise, costs already incurred. [Back]