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Drew v Whitbread, Court of Appeal, 9 February 2010

5 March 2010
The issues

Costs – allocation – allocation to Multi Track – whether appropriate to assess costs as if allocated to Fast Track – Aaron v Shelton – whether conduct had to be raised before Trial Judge prior to assessment of costs.

The facts

The Claimant fell off a ladder on the 1st September 2002 in the course of his employment. He brought a claim for personal injuries. Liability was denied. On the basis of the Claimant’s Schedule of Special Damage the claim was allocated, by agreement of the parties, to the Multi Track.

At Trial, the Recorder found the Defendant liable and the Claimant 25% contributorily negligent. The Claimant failed to make out an entitlement for future losses, which had been put at £18,325.00. His total damages were £9,291.56, after deduction of 25%. Counsel raised various issues as to costs on the basis that the decision in Aaron v Shelton obliged her to, rather than that they be left to an assessment. The points raised were a failure to negotiate, an exaggeration by the Claimant of his claim, and unreasonable conduct in relation to the agreement of the joint experts. The Recorder made no special Order for costs saying as to negotiation it was for the Defendant to make its own assessment and Part 36 offer; that the expert point could be left to the costs Judge; and that as to exaggeration, that although the Claimant had not succeeded in the entirety of his claim, it had not taken much Court time or cost to argue the point, and that it was “just the cut and thrust of litigation, and the fact that the parties put forward different figures…[was] no reason…to make any special order as to costs”.

The Bill lodged by the Claimant’s solicitors was £78,458.00. At Detailed Assessment the Regional Costs Judge took the view that after the 10th March 2006, the date on which the Defendants made an Application to see the Claimant’s medical reports, that it should have been apparent that it was a Fast Track case and accordingly she allowed costs from that date, on that basis. The effect of her ruling was to award costs of £41,844.72.

The Claimant Appealed to the Judge who upheld the District Judge.

A further Appeal was made to the Court of Appeal.

The decision

The Trial Judge may be in a good position to help a Costs Judge on questions as to the unreasonable incurring of costs but the fact that such issues were not raised with the Trial Judge should not preclude a party raising such matters with the Costs Judge. There may be circumstances in which a special Order from the Judge should be sought, for example, where it might be argued that a witness in a long Trial should never have been called because the evidence was irrelevant. In such circumstances the Costs Judge should not be required effectively to re-try the case in order to adjudicate the point and a special Order should be sought from the Trial Judge. But that was not the same as saying that there was a rule that a failure to raise a matter before the Judge under Part 44.3 precluded the raising of the matter before the Costs Judge under Part 44.5.

The two parts of the Rules fulfil different functions. Part 44.3 enables the Court, at the conclusion of the Trial or a Hearing, to make a special Order as to costs. Under 44.5 the Costs Judge had to have regard to all the circumstances including conduct and efforts made to resolve matters. Under both Rules, the Trial Judge and the Costs Judge were enjoined to take into account many similar factors. The parts were intended to work in harmony and it was intended that the party’s conduct might have to be considered under both.

In this case, the fact that the Trial Judge had been asked to make an Order in respect of exaggeration, and had declined to do so, did not preclude the Costs Judge when assessing costs from considering whether the conduct of a party should preclude an award of costs for a particular item. There was no reason why the Costs Judge should not consider the effects of such conduct unless some specific finding of the Trial Judge bound him. In this case, the Defendant had not sought an Order from the Recorder that costs should be limited to those recoverable on a Fast Track basis. The fact it was not raised however did not prevent the Costs Judge, when considering all the circumstances of the case, from including the question whether the case was in reality a Fast Track case.

The Defendant had also failed to obtain a special Order from the Recorder in relation to exaggeration. As to exaggeration, the Costs Judge was not entitled simply to rule that she was going to assess the costs of Trial as if the case were on the Fast Track. To do so would be to rescind the Recorder’s Order. In any event, simply to rule that the costs of the Trial should be on a Fast Track basis may have meant that the Costs Judge had given no separate consideration to the question whether it was a Trial that would always have been likely to run into a second day. If the Costs Judge had given reasons as to why it should not have run into a second day and that on that basis, Fast Track Trial costs were reasonable, she could not have been faulted. It was not clear to the Court however that the Costs Judge would necessarily have found that to be so, particularly given the unfortunate fact that the Costs Judge had had placed before her a note suggesting that the Recorder had found exaggeration when that was not so, which appeared to have influenced her in the view she had formed.

In the circumstances, the matter would be rescinded to the Costs Judge for her to reconsider the position in the light of the Court of Appeal’s Judgment.

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