FIXED COSTS STILL APPLIED AFTER AN ADJOURNMENT AND TWO ABORTED TRIALS: COVID WAS AN EXCEPTIONAL TIME BUT DID NOT GIVE RISE TO EXCEPTIONAL CIRCUMSTANCES

I am grateful to barrister James Miller for sending me a copy of the judgment of District Judge Lindsey Moan in the case of Osuzuwa -v- Madeira, a copy of which is available here  Osuzuwa v Madeira.    The judge held that an earlier adjournment and the defendant’s very late acceptance of a Part 36 offer did not amount to exceptional circumstances so as to justify going outside the fixed costs regime.

” So this is a case that there has been two aborted trials and whilst that presents a difficult set of circumstances and unfortunate in my judgment but looking at the case as a whole it is not one that is exceptional, and so I am not able to apply the exception to the fixed costs regime in terms of counsel’s fees or, indeed, solicitor’s costs,”

THE CASE

The claimant brought an action for damages for personal injury.  The action was subject to the fixed costs regime.   The matter was listed for trial. The defendant obtained an adjournment of the trial because their partner had Covid and he was required to self-isolate.

The matter was listed for trial again.  Shortly before the trial a Part 36 offer the claimant had made and this was accepted by the defendant.

THE ISSUE: COULD (OR SHOULD) THE COURT GO OUTSIDE THE FIXED COSTS REGIME

The judge held that they were bound by the decision in Hislop -v- Perde [2018] EWCA Civ 1726 so that CPR 36.13 does not apply.  However the court still had a discretion to award different figures for costs under Part 45.29J.  There had to be exceptional circumstances.

THE JUDGMENT

12. Part 45.29I gives a list of disbursements that are recoverable and it is noteworthy that
counsel’s brief fees does not appear within the lists of disbursements that are
recoverable. What is included within that list is any other disbursement reasonably
incurred due to a particular feature of the dispute and that is the provision that the
Claimant asks me to hang my hat on in allowing the brief fees to be recoverable as a
disbursement.
13. I take the view that if the disbursement was intended to cover counsels’ brief fee it
would have been included and the inclusion of a different fixed fee dependent on
whether the trial has started or as to whether it has not, in Table 6B, substantively and
comprehensively determines the point. If there had been an intention that an advocacy
fee would be payable even though the trial had not started, then I would say that Table
6B would provide for that and it does not.
14. Coincidentally, Master Haworth in Coleman v Townsend [2020] came to the same
view. I was referred by the Defendant’s counsel to consider the case of Mendes v
Hochtief [2016] EWHC 976 (QB), the trial was settled on the day and therefore there
is a different determination as to costs on a different basis which does not apply in this
case.
15. I take the view that the only route where counsel’s fee can be recoverable is through
Part 45.29J. If one looks at the White Book there is only one authority that is quoted
to give any guidance about when this would apply and that is in Ferri v Gill [2019]
EWHC 952 (QB) and, helpfully, I have been provided with a copy of that by the parties
today. That case makes the following very important points.
16. That it is important to parties that they know that costs will be limited to the fixed costs
regime at the outset so there is that certainty about what is recoverable and what is not
and that applies to both sides. The point was made that those who act for Claimants
will do better on some cases and not so on others. This is the swings and roundabouts
that was referred to in the judgment.
17. The Court took some time in Ferri v Gill to review some of the statements made by
Coulson LJ in Hislop v Perde. Those comments being that late acceptance was not
ipso facto an exceptional circumstance to justify costs outside the fixed costs regime.
A long delay with no explanation may trigger costs outside the fixed costs regime.
Every case depends upon its own facts and there is no need to show enhanced
expenditure as a result of a late acceptance or indeed, delay. The dicta reminds me that
exceptional circumstances are a high test or a high bar and I need to apply that to the
case at hand.

18. In this case I looked at why matters have taken the turn that they have. In relation to
the first trial not proceeding, that did not proceed because the Defendant was ill with
Covid, a self-isolating illness and he had an inability to participate remotely. I note
from my own recollection that between August to October 2020 we were recovering
from enforced remote working and trying to get cases back in to court. We were very
cautious because Covid was still rife and the court wanted to keep people safe, staff
and other people who come to court who might be particularly vulnerable had to be
protected. There were still quite a number of remote hearings taking place but also a
lot of caution in terms of whether somebody had suspected Covid symptoms or
whether they had tested positive. I saw from the correspondence that in fact the
Defendant had tested positive for Covid on 25 October.
19. It is not clear whether the Court knew on 26 October that the Defendant has tested
positive for Covid. The Court knew that his partner had tested positive for Covid and
that the Defendant submitted that he lived in the same household and therefore was
required to isolate and those actions were in accordance with the prevailing
instructions that were given at that particular time.
20. Now the Claimant was cautious about that explanation, perhaps fearing that this was
an attempt to avoid the matter coming to trial and being concluded on that day. All
professionals may have had malingering in their minds but notwithstanding that it
would have been, at that juncture, a very brave judge who, in the light of a suspected
Covid case would order that person to come to court without them having gone through
the testing procedure and been satisfied that they were negative.
21. Covid was an exceptional time but that does not mean it was an exceptional reason
because not being able to come to court through illness and not being able to participate
remotely is something that we hear about all of the time. It is something that comes up
regularly, in my experience.
22. The Part 36 offer that obviated the need for the second trial was accepted very late in
the day, the day prior to the final hearing and whilst that is entirely regrettable
circumstances, it is also, in my experience, a regular occurrence with both fast track
and multitrack trials. It is the final hearing that focuses party’s minds that the matter is
going to come to a conclusion and that they need to be ready to get on with matters. It
may well be that the Defendant was not able to do that and therefore chose the Part 36
offer as an alternative to an application for a further adjournment being refused; I am
sure he would have been advised would need to be a compelling one to adjourn a trial
twice.
23. So this is a case that there has been two aborted trials and whilst that presents a difficult
set of circumstances and unfortunate in my judgment but looking at the case as a whole
it is not one that is exceptional, and so I am not able to apply the exception to the fixed
costs regime in terms of counsel’s fees or, indeed, solicitor’s costs, which is alluded to
in the witness statement.
24. Now the Consent Order fee, as I understand it, has been agreed now. It is right and
proper that is recovered by the Claimant and I have not got any information about what
witness expenses the Claimant incurred. I do not have any receipts if receipts are
available and so accordingly that must fail as well. So that is my judgment on the
substantive application