Costs – Personal injury – Allocation – Detailed assessment

Drew v Whitbread: CA (Civ Div) (Lords Justice Waller (vice-president), Hooper, Etherton): 9 February 2010

The appellant (D) appealed against a decision that, where the trial judge ordered costs to be assessed on the standard basis, the costs judge could assess the costs as if the case had been allocated to the fast track.

D fell off a ladder in the course of his employment and was injured. He brought a claim for personal injury alleging negligence and breach of statutory duty. He pleaded that he had suffered injuries to the lower spine with ongoing symptoms, and that the financial value of his claim exceeded £15,000 and included a claim for personal injury in excess of £1,000. Ultimately his schedule of special damages totalled some £30,000. The case was dealt with on the multi-track. The trial went into a second day. The judge found W liable but that D was 25% responsible for his own injuries. On damages he found on the basis of the joint report of medical experts that D would not have required any care and assistance as a result of the accident after three months and thus he recovered nothing for future losses put at £18,325 in his schedule. He did recover a Smith v Manchester award assessed at £5,000 prior to the deduction of 25%. The total damages were £9,291.56, which exceeded a payment in by W. The judge ordered W to pay D’s costs on the standard basis if not agreed. W disputed D’s bill of costs as disproportionate and said that D’s claim had been exaggerated. The costs judge held that after the date of W’s application to see D’s medical reports the case should have been pursued as a fast-track case and costs would be assessed on that basis. The judge upheld that decision. D submitted that: (1) if a party wished to argue that a case was, in reality, a fast-track case, and in particular that it was a case that should only have lasted a day, that had to be raised with the trial judge, and if not raised with the trial judge could not be raised with the costs judge; (2) the costs judge had no jurisdiction to rule that costs should be assessed as a fast-track case; (3) the costs judge had been misled by an inaccurate note of the trial judge’s ruling as to exaggeration.

Held: (1) It would not be consistent with the express provisions of rules 44.3 and 44.5 of the Civil Procedure Rules and with the court’s duty to see that costs were proportionate and reasonable to preclude a party raising a point highly material to that question because it had not been raised before the judge under rule 44.3, Lownds v Home Office [2002] EWCA Civ 365, [2002] 1 WLR 2450 considered. If what was sought was a special order as to costs which a costs judge should follow that obviously should be sought from the trial judge. If it was clear that a costs judge would be assisted in the assessment of costs by some indication from the trial judge about the way in which a trial had been conducted, a request for that indication should be sought. But there was no rule that a failure to raise a point before the trial judge would preclude the raising of a point before the costs judge, Aaron v Shelton [2004] EWHC 1162 (QB), [2004] 3 All ER 561 and Lahey v Pirelli Tyres Ltd [2007] EWCA Civ 91, [2007] 1 WLR 998 considered. The question of exaggeration was raised before the trial judge but he made no special order. The fact that no special order had been made did not preclude the costs judge in assessing costs considering whether the conduct of a party should preclude an award of costs for some particular item. There was no reason why the costs judge should not consider the effect of such conduct unless some specific finding of the trial judge bound him. Similarly, W did not seek an order from the trial judge that costs should be limited to those recoverable on a fast-track basis, and in particular did not seek a ruling that only one day’s costs should be allowed even though the case had gone into a second day. It might have been helpful to the costs judge if some indication had been given by the trial judge on that question. But the fact that it was not raised did not prevent the question whether the case was in reality a fast-track case from being raised before the costs judge.

(2) The costs judge was not entitled simply to rule that she was going to assess the costs of trial as if the case were on the fast track. That would be to rescind the trial judge’s order. The permissible approach was to assess costs on the standard basis taking into account that the case should have been allocated to the fast track. It could not be said that the costs judge had dealt with the instant case on that basis.

(3) The note before the costs judge of what the trial judge had said about exaggeration was not accurate. It was difficult to think that that did not influence her conclusions.

(4) In the circumstances the matter should be remitted to the costs judge for reconsideration.

Appeal allowed.

Mark Friston, Craig Ralph (instructed by Harris Fowler) for the appellant; Andrew Hogarth QC, Benjamin Williams (instructed by Wansboroughs) for the respondent.