Costs Budgets on Assessment: The Court of Appeal View

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Following the decision of Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) in February this year, the Court of Appeal has now had the opportunity to consider the effect of case management orders on assessment proceedings.

CPR 3.18 states that in any case where a costs management order has been made, when assessing costs on the standard basis, the court will have regard to the party’s last approved or agreed budget for each phase of the proceedings and not depart from the same unless satisfied that there is good reason to do so.

However, there has been disagreement over the interpretation of this part on matters where a party’s costs had not exceeded the budget in respect of a particular phase and therefore whether a costs judge on assessment was precluded from going below the budgeted amount.

In Harrison -v- University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792, the Court of Appeal were asked to address this issue and also whether this applied to the costs already incurred at the time of the budget, as such costs would have been taken into account at the costs management stage in assessing the total figures for each phase of the proceedings.

Lord Justice Davis stated:

“I am in no real doubt that Master Whalan reached the right conclusion on this issue and that the conclusion of Carr J in Merrix was also correct, for the reasons which she gave. “

Affirming that to go below the budgeted amount for a particular phase the paying party does need to establish good reason.

However, the Court of Appeal did find in favour of the appellant in respect of the issue of incurred costs, concluding that the same are to be the subject to detailed assessment in the usual way, without any added requirement of “good reason” for departure from the approved budget.

Lord Justice Davis explained that a costs judge on assessment involving a case management order will assess incurred costs in the usual way and also consider budgeted costs before ultimately having to look at matters in the round and consider whether the resulting aggregate figure is proportionate, having regard to CPR 44.3 (2)(a) and (5).

We have now started to receive assessments from the Court relating to cases involving these issues, therefore if you ever need assistance on such matters, contact us!

Costs on Late Acceptance of a Part 36 Offer

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Practitioners will be keenly aware that over the last year or so, Judges have grappled with the question of what costs would apply on cases which began on one of the Low Value Protocols and exited and which subsequently settled when a Claimant’s Part 36 offer has been accepted out of time.

These issues began following the Court of Appeal’s decision in Broadhurst –v- Tan when the Court decided that where a Part 36 offer was beaten at trial, the Claimant would recover their Fixed Costs applicable at the last date for accepting the offer and their costs assessed on the indemnity basis thereafter.

Since then, Claimants have argued that the same principle should apply where their Part 36 offer is accepted out of time but before trial. The difficulty is that whilst the rules are clear as to what should happen where there is an effective Part 36 offer at trial, they are less clear when the offer is accepted following expiry of the relevant period (usually 21 days) but before trial. The rules provide the Court with a wide discretion in those circumstances.

The latest of these cases were Hislop –v- Perde which was heard by His Honour Judge Walden-Smith on 7 August 2017 and Parsa –v- Smith before His Honour Judge Tindall on 8 September 2017.

In Hislop, The Judge found that the rules provided that the Claimant would be entitled to his costs on either the standard basis or indemnity basis to be assessed if not agreed and it was a matter for the Court to decide whether these would be assessed on the standard or indemnity basis, with no presumption either way. What he was clear about was that where a Part 36 offer was accepted out of time, the costs after the offer would be assessed and would not be fixed.

In Parsa, the Judge found, contrary to the decision in Hislop, that the costs after late acceptance of a Claimant’s Part 36 offer would still be fixed costs.

The Defendant has since filed an appeal with the Court of Appeal in Hislop. The Court has not yet decided whether to grant permission but it is hoped that permission will be granted and an expedited hearing listed in order to provide certainty to the parties.

Settlement of this vexed issue by the Court of Appeal cannot come soon enough.

Assignment of CFAs: Budana -v- The Leeds Teaching Hospital NHS Trust

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The long‐awaited Court of Appeal Judgment in Budana ‐v‐ The Leeds Teaching Hospital NHS Trust has finally been handed down. With three separate Judgments, running to a total of 119 paragraphs, it is little wonder that it took five months!

The Lady and Lords reached the same conclusion; success fees following a transfer of business from one firm to another firm are in principle recoverable. However, they reached their conclusions in different ways.

The matter involved a pre‐April 2013 conditional fee agreement entered into between the Claimant and Baker Rees. On 22 March 2013, Baker Rees informed the Claimant they would no longer be handling personal injury claims and suggested the Claimant transfer her case to Neil Hudgell Ltd under the same funding arrangement.

The firms entered into a transfer agreement for the sale to and purchase by Neil Hudgell of Baker Rees’ book of personal injury business.

On 10 April 2013, following contact from Neil Hudgell, the Claimant signed and returned a deed of assignment as between her and Neil Hudgell.

The Defendant sought to argue that the Claimant could only recover her base costs under a second conditional fee agreement that Neil Hudgell entered into with the Claimant as a back‐up, and not the costs of Baker Rees or any success fee.

The Defendant’s position was that the Baker Rees conditional fee agreement had terminated following their letter of 22 March 2013 or alternatively, if it had survived, it could not have been transferred by assignment, but only novated, which would have fallen foul of LASPO and the Conditional Fee Agreements Order 2013 and therefore was not an enforceable contract.

All Judges agreed that the letter of 22 March 2013 did not amount to termination of the conditional fee agreement. The disagreement was over whether the agreement had been assigned or novated.

Lady Justice Gloster found there was no reason in principle why rights and benefits under a firm of Solicitors’ contracts with its clients or its books of business should not be capable of assignment. The crucial element was one of consent.

She also found that the conditional benefit principle (the Defendant’s position that the benefit and burden of the CFA could not be assigned) was not relevant in the present circumstances and that Rafferty J in Jenkins ‐v‐ Young Brothers Transport Ltd had wrongly sought to enlarge the scope of the conditional benefit principle in her Judgment.

Lady Justice Gloster found the correct contractual analysis was that the contract assigning the rights, liabilities, benefits and burdens to Neil Hudgell was a novation and accepted the Claimant’s submission that Section 44(6) of LASPO and article 6 of the Conditional Fee Agreements Order 2013 should be interpreted so as to include a conditional fee agreement entered into before 1 April 2013 and novated after then.

She found support for this in the matter of Plevin ‐v‐Paragon Finance Ltd, where Lord Sumption stated the purpose of the transitional provisions of LASPO in relation to success fees and ATE premiums was to preserve the vested rights and expectations arising from the previous law. She stated that purpose would be defeated by an overtechnical application of the doctrine of novation.

Lord Justice Davis was of the view that the Court should give effect to the parties’ intention, which was that the conditional fee agreement be assigned, and he approved the conclusion of Rafferty J in Jenkins. However he did agree with Gloster LJ that the Defendant’s approach to novation was too narrow and would tend to frustrate the policy underlying the legislation.

Either way, it is hoped that the Court of Appeal’s clarification will reduce the number of fishing expeditions being pursued by Defendants in relation to matters involving pre‐April conditional fee agreements.