I am looking again at the decision in  Hussain v Medical Defence Union & Anor [2020] EWHC 157 (QB). This time I am looking at the order in relation to costs.  The application cost in excess of £40,000 in relation to documents many of which  would have been available (at virtually no cost) from the respondent under the GDPR.


“Mr. Hussain would most probably be entitled to the very same documents under the GDPR,”


The applicant brought an application for pre-action disclosure against the Medical Defence Union arising out its refusal to indemnify him in relation to a negligence claim. That application was refused. The judge went on to consider the costs of the application.


This application cost the applicant £22,365.50 in relation to the MDU’s costs plus £15,000 and VAT in relation to his own.  However, as the judgment states, “Mr. Hussain would most probably be entitled to the very same documents under the GDPR,” (at no, or minimal cost).


The arguments
    1. The parties were provided with a copy of my draft judgment in this matter setting out my reasons for refusing the application for disclosure. They subsequently made submissions on costs.
    2. Ms. Corkill applies for her clients’ costs, referring to CPR 46.1 which sets out a costs regime for pre-commencement disclosure applications. It provides as follows:
“(2) The general rule is that court will award the person against whom the order is sought that person’s costs –
(a) of the application; and
(b) of complying with any order made on the application.
(3) The Court may however make a different order, having regard to all the circumstances, including –
(a) the extent to which it is reasonable for the person against whom the order was sought to oppose the applications; and
(b) whether the parties to the application have complied with any pre-action protocol.”
    1. Ms. Corkill contends that it would defy logic if the Respondents could recover the costs where the application succeeds and they are ordered to provide disclosure, but not where it fails. Further, that the Respondents reasonably defended the application.
    2. Ms. Corkill invites the Court to make an award of costs on an indemnity basis. She contends that the correspondence from Mr. Hussain’s solicitors was “protracted, lengthy and unhelpful”. If not, I am asked to summarily assess the costs on the standard basis. The Respondents’ costs schedule comes to £37,275.84 (£31,063.20, plus VAT). Ms. Corkhill contended that (a) the application involved factual and legal complexities; (b) there were protracted exchanges between the parties throughout the course of the application; (c) the nature of the application was of particular concern to the Respondents, and explained the substantial input from the partner of the solicitors instructed by the Respondents, including a lengthy statement provided by him; (d) the various documents that were sought were wide ranging, and took time and costs to search for, review and consider.
    3. Ms. Corkill also seeks to resist a submission made by Mr. Krsljanin, on behalf of Mr. Hussain, that if I make a costs order against his client then this should be deemed unenforceable until after WM’s claim has been determined. Mr. Krsljanin contends that staying enforcement would be “equitable but also practical”. Even if Mr. Hussain had funds to meet the order, this would make it more difficult for him to fund his defence to the clinical negligence claim. If he is able to defeat that clam, it is more likely that he will be able to pay the Respondents’ costs. Ms. Corkill contends that staying enforcement would be unduly harsh to the Respondents. It would amount to a radical departure from the ordinary costs rules. The fact that Mr. Hussain is engaged in other litigation should not justify such departure.
    4. Mr. Krsljanin contends that, in fact, there should be no order as to costs on the basis that (a) the Respondents took an evasive approach in connection with the issue of the subject access requests – he says that Mr. Hussain’s requests should have been treated as subject access requests; (b) the application was necessary, as without it the Case Summary documents would not have been disclosed; (c) the Respondents’ approach has been disproportionate and heavy-handed; and (d) at the hearing, the Respondents conceded that the jurisdictional requirements were met, but only after substantial evidence and argument had been devoted to arguing the contrary.
    5. In the alternative, Mr. Krsljanin argues that reasonable and proportionate costs only should be awarded against Mr. Hussain. On summary assessment, Mr. Krsljanin makes a number of points: (a) viewed globally, the costs claimed were unreasonable and disproportionate, and not justified by the issues in the case or the Respondents’ true arguments in response to the application; (b) the hourly rate charged by the partner was disproportionate given the issues, as was the level of his involvement; (c) this was not a case in which extensive searches were conducted; (d) attendances on others have not been explained; (e) the partner’s witness statement was in large part irrelevant to the issues. Mr. Krsljanin submits that the Respondents should be limited to a reasonable and proportionate sum to reflect drafting the correspondence and counsel’s costs.
  1. In my judgment, there is no reason to depart from the general rule at CPR 46.1(2) that the party against whom the application is sought – in this case, the Respondents – should be entitled to their costs. The application was successfully resisted, and I do not consider that the Respondents acted unreasonably in the way in which they resisted that application.
  2. In this regard, I note that well before the hearing, on December 23rd 2019, the Respondents provided Mr. Hussain with what are, at least ostensibly, the key documents in the case: the Case Summary followed by the Chairman’s email. This voluntary disclosure followed significant pre-application correspondence in which the Respondents had set out in some detail the background to the decision to withdraw support for Mr. Hussain in the claim being brought by WM.
  3. Furthermore, I note that in their letter of December 23rd 2019, the Respondents’ solicitors invited Mr. Hussain to reconsider and withdraw his application, and save the costs of proceeding further. In addition, Mr. Hussain was informed that if withdrew his application, the Respondents would not seek costs to date. This was a reasonable approach to the application.
  4. I do not consider that the points made by Mr. Krsjlanin – summarised above – justify a different approach from the general rule. I do not consider that Respondents took an evasive approach in connection with the issue of the subject access requests. Repeatedly, Mr. Hussain’s solicitors said that they would make a formal subject access request if their pre-action disclosure request was not satisfied (see correspondence cited above), and yet they did not do so. It was not, in my judgment, unreasonable for the Respondents to form the view that Mr. Hussain was not making a subject access request. Indeed, when I asked Mr. Krsjlanin at the hearing why a subject access request was not made, he said that his client did not wish to obtain documents through what he called “the back door”.
  5. It may well be the case that without the application the Case Summary documents would not have been disclosed. However, they were disclosed, and an offer to “drop hands” was made if the application was then withdrawn. This offer was not acceded to by Mr. Hussain.
  6. I do not consider that the Respondents’ overall approach to this matter justifies a departure from the general rule. The fact that the Respondents conceded that the jurisdictional requirements were met at the hearing did not mean that they had acted unreasonably. The key point that still needed to be argued out, and which the Respondents succeeded on, was that of discretion.
  7. In my judgment, there is no basis to make an award of indemnity costs as sought by the Respondents. Mr. Hussain’s legal representatives argued the case forcefully, but their conduct was not “out of the norm” to justify such an award. I consider that costs should be awarded on the standard basis, and that they should be summarily assessed.
  8. It seems to me that costs in the amount of £31,063.20 (plus VAT) for this application for pre-action disclosure are not proportionate to the matters in issue: CPR 44.3(2)(a). It was contended by Ms. Corkill, among other things, that the nature of the application was of a particular commercial concern to the Respondents, as the substance of the claim and the documents sought went to the heart of the Respondents’ decision making process. Furthermore, that this justified significant input from a partner at the rate of £470 per hour. That may well be how the Respondents viewed the matter. However, given that Mr. Hussain would most probably be entitled to the very same documents under the GDPR, it seems to me that the costs incurred, including the significant partner input, do not bear a reasonable relationship to the Respondents’ concerns about the documents that were being sought by Mr. Hussain.
  9. Looking at the individual items, it is clear that there was considerable hands-on partner involvement in the matter. I note, for instance, that 13.40 hours of partner’s time was incurred on attendance on the Respondents (£6,298); and that 5.60 hours were incurred by the partner on the Respondents’ witness statement. This does not seem to me to be reasonable given the issues in the case.
  10. I also note that the amount of time spent on preparing the witness statement – more than 30 hours of fee earners’ time – does not seem to me to be reasonable given the issues in the case.
  11. Looking at the matter in the round, I consider that 60% of the overall amount sought by the Respondents is more proportionate: that is, a figure of £18,637.92, plus VAT: a total sum of £22,365.50.
  12. I am comforted that this is a more proportionate amount by seeing the costs schedule produced by Mr. Hussain (£15,228 plus VAT). That is closer to the figure that I would expect to be incurred in dealing with an application of this kind.
  13. I have sympathy with Mr. Hussain and the fact that he faces litigation from WM without the assistance of an indemnifier. I also appreciate that he may face further difficulty in funding that litigation if he is also required to pay costs to the Respondent. Nevertheless, I do not consider that these factors justify a departure from the normal rule that costs should be paid within a reasonable time. The Respondents have incurred considerable costs in defending this application, and they ought to be put in the position where they can recover the amount of costs that I have ordered from Mr. Hussain within a reasonable period of time. In this regard, I am mindful of the fact that there will be many other calls on the Respondents’ funds from other members who need their support and assistance. I do not accept that Mr. Hussain’s particular difficulties should come before the needs of the other members.