DEPARTING FROM THE BUDGET: IMPORTANT DECISION ON APPEAL: JUDGMENT NOW AVAILABLE

Both Professor Dominic Regan and Acumension have kindly sent me copies of the decision in Barts Health NHS Trust -v-Salmon an appeal in relation to costs budgeting (HHJ Dight CBE, with Master Brown as an assessor, 17th January 2019).  A copy of that decision is available here Barts Health NHS Trust v Salmon – Approved Judgment – Final-3 So many people have been asking about the case, or asking for copies, that I thought it best to write a short post on it and let people see the case. The case raises a number of issues that I hope to examine at a later date. (Acumension inform me that the claimant’s solicitors have not put in an application for a second appeal, the time limit for appealing has passed).

THE CASE

The claimant brought an action for clinical negligence.   The matter was cost budgeted. The action  subsequently settled for £7,000.   On assessment the  Master found that there was no good reason to depart from the budgeted costs.  The defendant appealed.

ON APPEAL

Acumension have provided me with a summary of the issues and the decision.

  • “Good reason to depart from budgeted costs and CPR 3.18
This was the main ground of appeal. HHJ Dight ruled that where the claimant has good reason to have claimed less than the budget (for example because they spent less / by operation of the indemnity principle) then the paying party does not in principle need to establish a ‘further’ good reason in order to reduce the costs to a greater extent. The logic is that the court cannot depart from the budgeted costs unless there is good reason. Therefore, where the claimant has already departed from the budget by claiming a lower sum, then that in itself is a good reason to depart from the budget, and the receiving party is not required to find a ‘further’ good reason in order to further challenge the figure which has been claimed by the receiving party. In such circumstances, the costs judge should proceed to undertake a pragmatic assessment of the costs claimed in that particular phase.
HHJ Dight found that if he was wrong on the above, then he agreed with the defendant in any event – namely that as the claimant has not completed the work anticipated by the budget, then it was open for the paying party to challenge the figure which has been claimed by the receiving party; and on the facts of the case further good reason to depart existed.
 It was found that Master Whalan was wrong to have concluded that there was no good reason to depart from the budget in respect of the expert report and ADR phases.
  1. Proportionality
This was the lesser ground of appeal.
HHJ Dight found that Master Whalan had acted within the wide ambit of his judicial discretion when applying the global proportionality test.
However, because the first two grounds of appeal (relating to the expert and ADR phases of the bill) had been allowed, it followed that the starting-point for applying the global proportionality test might have shifted and therefore in the absence of an agreement between the parties, there would need to be a further assessment of the expert and ADR phases of the bill followed by a further application of the global proportionality test.”

AN ASIDE (COURT TECHNOLOGY)

Those with an interest in technology and the courts should read the opening lines of the judgment.

“Thank you. Can I just preface this by saying that you are going to have to bear with me to a certain extent: the court has had no IT, no internet access, and the telephones have not worked for the last few days, and so there have been a few difficulties in preparing this judgment.”