NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL

We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden   of  Hempsons for sending me a copy of the transcript which has only recently become available. One interesting feature of the case was the claimant’s failure to provide a budget despite being asked, four times, by the defendant.

UNUSUAL FEATURES OF THIS CASE

The Court of Appeal refused the claimant’s appeal against a decision to refuse relief from sanctions when a costs budget was not served.

The key feature of this case is summed up in the first part of Jackson LJ’s judgment.

“This is not a case of an overworked solicitor who simply did not get around to the task. It is a case in which the Claimant’s solicitor deliberately decided not to file a budget despite repeated urging by the Defendant’s solicitors.”

THE CHRONOLOGY

Proceedings were commenced in 2013. In January 2013 a defence was filed and Northamton County Court sent out form 149C stating, among other things that the case was suitable for allocation to the multi track. The defendant admitted liability shortly thereafter. The form 149c was revoked and the matter was transferred to Bradford County Court on the 10th February 2014 when judgment was entered on the defendant’s admission.

• On the 28th February 2014 the court vave notice that there would be a two hour long case management conference on the 27th May 2014 with two hours allowed for the hearing.
• On the same date the defendant’s solicitors sent their directions questionnaire, the proposed draft directions and costs budget to the court and to the claimant’s solicitors.
• The claimant did not send the budget.
• On the 6th May the defendant’s costs lawyers wrote asking the budget (Jackson LJ stated “That was a sensible letter to send. It was no doubt intended to pave the way for discussions about the parties’ respective budgets”.
• The claimant did not reply in an constructive way. A budget was not sent.
• The defendant served an updated costs budget on the 16th May and, once again, asked the claimant for their budget.
• The claimant replied stating that a costs draftsman had been instructed to file a budget but they were “just checking with counsel” whether this was a requirement as judgment had been entered.
• The defendant replied on the 19th May 2014 stating that their view was that budgets were required. The claimant’s solicitors were not persuaded they did not serve a budget.
• The case management conference took place on the 27th May 2014. The defendant’s budget was approved. The claimant had not filed a budget in advance. However the claimant’s counsel, at that point in the hearing, produced an unsigned budget and proposed that this budget be used for costs budgeting.
• The defendant’s counsel stated that it was not possible to deal with costs budgeting on the basis of a budget that had just been produced.
• The district judge, therefore, made an order confining the costs budget to court fees.
• The claimant made an application to vary the order/relief from sanctions on the 4th June 2014. This was refused by the district judge on the 29th July 2014.
• The claimant appealed to the Circuit Judge and that appeal was disallowed. The judge held that this was self-evidently a multi track case and a costs budget should have been filed.

THE ARGUMENT ON APPEAL 1: COSTS BUDGETING NOT NECESSARY

This case was clearly a multi track case. The claim was pleaded for some £3 million. The Court of Appeal held that no sensible person could think it could proceed on the fast track. Further the fact that judgment had been obtained did not take the matter outside the costs budgeting regime.  The parties were required to file costs budgets. The automatic sanction in rule 3.14 applied.

THE ARGUMENT ON APPEAL 2: RELIEF FROM SANCTIONS SHOULD HAVE BEEN GRANTED

The Court of Appeal were clear in stating that the District Judge erred in finding that “the present case was factually so close to Mitchell that he was bound to refuse relief from sanctions”.  That was the wrong approach.

However the parties had agreed that this was wrong when the parties appeared before the Circuit Judge, His Honour Judge Gosnell, and the Circuit Judge had also refused relief from sanctions.

The decision of the Circuit Judge

The Court of Appeal held that Judge Gosnell had come to an appropriate conclusion. He had applied the threefold test as laid down by the majority in Denton.

Judge Gosnell had been critical of the claimant’s solicitors.  He described the actions of the claimant’s solicitors as “foolish” and stated:

“I have already referred to the four letters which his opponent had written suggesting that the budgets were required. Any sensible solicitor, even if they believed that they were right about the law, would probably have prepared the budget.“

Harsh but right

Jackson LJ  considered criticisms of Judge Gosnell’s findings and rejected them:-

“It seems to me that the various harsh comments which the judge made about the solicitor’s decision were proper comments for the judge to make. They were plainly relevant to the exercise of the court’s discretion under CPR 3.9. They were plainly relevant to the application of the threefold test in Denton.”

No good reason

Finally the Court of Appeal found that there was no good reason for the breach. The claimant argued that the rules had been misinterpreted by the claimant’s solicitors but their approach was reasonable.

“The judge rejected that argument in strong terms. He was entitled to do so.”

RELATED POSTS

• Important changes to costs budgeting: the Key Points

• COSTS BUDGETING – THE KEY DATES: A QUICK REMINDER TO AVOID A SHARP (BUT NOT NECESSARILY SHORT) SHOCK
• Most of the key cases and articles on relief from sanctions are monitored in the Sanctions Case Watch feature of this blog.