Failure to file costs budget limits PI claimant to recovery of court fees only
This judgment of the Court of Appeal in the case of Jamadar -v- Bradford Teaching Hospitals NHS Foundation Trust (Lawtel 21/07/2016) serves as an important reminder that the Courts will take a strict view in relation to cases in which parties fail to file and serve costs budgets.
The Claimant had received negligent medical treatment, resulting in the amputation of one of his legs; he presented a claim with a value of circa £3 million. The Defendant NHS Trust initially denied liability, following which the Court sent Form N149C to the parties, indicating that the case was suitable for allocation to the multi-track. The Defendant subsequently admitted liability, and the Court revoked the N149C, and listed the matter for a CMC.
The Defendant filed and served a costs budget, but despite requests, the Claimant did not do so in advance of the CMC.
At the CMC, directions were given, including for the appointment of experts in five disciplines, and a five day quantum trial. The Defendant’s costs budget was approved. As the Claimant had failed to file and serve a costs budget, it was ordered that, pursuant to CPR Part 3.14, his recoverable costs would be limited to applicable court fees.
The matter was initially appealed to a circuit judge who dismissed it, having considered the previous authorities of Mitchell -v- News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton -v- TH White Ltd [2014] EWCA Civ 906.
The Claimant’s further appeal to the Court of Appeal was dismissed. The Court accepted that the circuit judge had appropriately considered and applied the test in Denton.
It was firstly held that there had been a serious breach by the Claimant, which would result in there being a further CMC at which costs budgeting would be considered.
Secondly, both the district judge at first instance and the circuit judgment had rejected the explanation of the Claimant of the reasons for his default. The Court of Appeal would not look to interfere with this decision.
Finally, the decision of the lower courts that the third limb of the Denton test was not satisfied (ie considering all the circumstances of the case, it was not necessary to give relief from sanctions in order to deal with the case justly). Though it was accepted that some judges may have taken a less strict view, the decision taken by the circuit judge was within the range of discretion open to him.
This decision provides a reminder that the courts are willing to take a strict line in relation to procedural defaults. The result in this case is that the Claimant’s solicitors would not recover any costs for pursuing this £3 million claim. Whilst parties must be wary of being seen to take an opportunistic approach towards the procedural defaults of opponents, and hence falling foul of the criticism of the Court of Appeal at paragraphs [39] – [45], this is a useful case to cite as an example of a case in which breach of procedural rules has been strongly penalised.
On the opposite side of the coin, the case also serves as a warning that parties must take a proactive approach to the issue of costs budgeting, and be well prepared to file budgets in advance of CMCs, in accordance with CPR requirements.
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