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Smith v Havering, Supreme Court Costs Office, 30 May 2003

17 June 2003
The issues

Pre-Action Protocol – non-compliance – costs.

The facts

The Claimant suffered personal injuries in September 1997 when her child was delivered stillborn in Haroldwood Hospital. Solicitors were instructed on the 28th November 1997. A CFA was signed on the 19th June and an ATE Policy taken out on 5th July 2000. Proceedings were issued on the 4th September 2000, two weeks before limitation expired. They were not served. On the 19th December 2000, a Protocol letter was sent (Master Wright noting that it appeared to comply with the Pre-Action Protocol for the resolution of clinical disputes except that proceedings had already been issued). Although proceedings had to be served by 3rd January 2001 (they were described as “protective proceedings” by the Claimant’s Solicitors). The Claimant’s Solicitors were willing to offer extensions of time for service of the Defence. Those extensions were eventually agreed until 18th April 2001. The Defence was eventually served on 2nd May 2001. Judgment was entered by consent on 14th February 2002 and on 12th July 2002 the matter was settled for £30,000.00. The Defendant agreed to pay Claimant’s reasonable costs. The Defendant applied for an Order that the success fee of 100% was disallowed or reduced and that all or part of the Claimant’s costs be disallowed on the basis that they had failed to comply with the Protocol.

The decision

1. The Defendant had been given ample time by means of extensions of time for service of its Defence to decide whether or not to defend the claim. The Defendant had in fact been given more time by means of the extension of time than was provided for in the Protocol.

2. On the facts, it appeared unlikely even if the Defendant had been given the 3 months provided in the Protocol prior to the issue that the claim would have been settled prior to issue of proceedings. The fact that the Defendant did not admit liability until February 2002 was a very significant factor in persuading the Master to come to that view.

3. Accordingly, no sanction for Claimant’s failure to observe the Protocol would be justified.

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