PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VIII: PROPORTIONALITY LEADS TO BASE COSTS BEING REDUCED FROM £115,906.00 TO £75,000
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of HHJ Auerbach in Reynolds -v- One Stop Limited (21st September 2018). A copy of the judgment is available A79YM916 Reynolds v One Stop Stores Limited – Appeal. It is an example of proportionality being applied on assessment to reduce a claimant’s costs. That reduction was upheld on appeal. The Circuit Judge’s observations on proportionality are of general interest.
“The fact that the Court, when conducting a detailed costs assessment, may bring proportionality to bear on all of the costs, does not, in my view, mean that there is a form of double counting, by the Court as it were further cutting down for proportionality, costs which may have already been cut down for proportionality. Rather, the Court is simply applying, and then later reapplying, the same filter at two different stages. At the assessment stage it does so with the benefit of different information, and bringing hindsight to bear, which it is entitled to do.”
The claimant was injured at work. Shortly after the claim was notified the defendant made an offer of £35,000. The offer was not accepted, proceedings were issued and the litigation went on for a further three years. The matter was listed for trial for three days with numerous experts due to attend. Settlement was reached at the door of the court with the claimant accepting £50,000. The defendant was to pay the claimant’s costs.
The schedule to the Tomlin order, which recorded the settlement, stated
“UPON it being agreed: i that the court has previously recorded that the totality of the Claimant’s budget appears disproportionate
ii that the recovery of £50,000 in damages is less than the amendment of the value of the claim, pursuant to the order dated 12 April 2017, to increase the statement of value on the Claim Form to not exceeding £300,000;
iii that the costs associated with and consequent to Dr Munglani’s report dated 3 October 2017 and Dr Spencer’s report dated 25 September 2017 and the update Schedule of Loss dated 18 October 2017 shall not be payable by the Defendant.”
THE ASSESSMENT OF COSTS
After completing a line by line assessment of costs the district judge reached a figure for base costs of £115,906.09. Having heard submissions and made a decision on proportionality they base costs figure was reduced to £75,000. An additional liability was added to that figure. The defendant was awarded the costs of the assessment.
THE CLAIMANT’S APPEAL
The Circuit Judge refused the claimant’s appeal.