Claimant awarded costs of the assessment on the indemnity basis over Defendant's failure to respond to offer of ADR
In the Various Claimants v Mirror Group Newspapers litigation, Master Gordon-Saker has ruled that the Claimant should recover their costs of the assessment on the indemnity basis as a result of the Defendant's failure to respond to the offer of mediation.
The prospect of ADR was initially raised by the Defendant and the Claimant responded by proposing a potential mediator and requesting that the Defendant agree to cover the costs of the process.
The Defendant did not respond to the Claimant despite numerous chasers and Master Gordon-Saker considered that the Defendant had acted unreasonably in failing to engage in the process:
"it seems to me that there has been a blanket refusal by the Defendant to engage in any process of discussing ADR"
"I have no hesitation in concluding that the Defendant has behaved unreasonably in failing to engage in the process of discussing at least the possibility of ADR, and mediation in particular and given that the common costs base costs have been agreed, it seems to me that there was no reason for pessimism as to the outcome of any mediation"
Master Gordon-Saker went on to order that the Defendant pay the costs of the assessment of the common costs bill and the four individual claims on the indemnity basis.
This ruling is further evidence that any failure to engage in ADR, whether that be in the main action or during costs proceedings, is likely to lead to sanctions being imposed by the Courts against the defaulting party.
It has been reported that there has been a change of policy at the Department of Health with regard to the proposed introduction of fixed costs in Clinical Negligence cases.
Where the proposed limit had been mooted to be as much as £250,000.00, it is now proposed that there be consultation over fixed costs up to £25,000.00 (the limit of the Fast Track).
The Department of Health also confirmed that no final decision had been made over the limit, but it would seem eminently more workable up to the limit of the fast track than it would be within the multi track.
Previous plans for fixed costs had also been considered to apply to all of civil litigation. This consultation relates only to Clinical Negligence and it remains to be seen whether that is as a precursor to fixed costs being rolled out in other areas of civil litigation.
The limit of £25,000.00 is said to cover 60% of cases, so will still have significant implications for many Clinical Negligence practitioners. However, for many lawyers that will not represent 60% of their revenue.
This would seem to be a step in the right direction and comes on the back of more good news for the Claimant arm of the profession, following the announcement that the government was to reconsider the proposed legislation announced by George Osbourne with regard to whiplash claims.
There must be a balance struck between reducing legal costs and maintaining access to justice. It is essential that those that have been injured through no fault of their own are not denied access to justice because Solicitors are not prepared to take on their case. Any fixed fee must be realistic to avoid such an outcome.
A High Court judge has suggested that a detailed costs budget should be submitted with any application for security for costs.
The case of BNM v MGN Limited  EWHC B13 was decided in June of this year.
In BNM, Master Gordon-Saker assessed a bill of costs in the sum of £241,817.00 down to £167,389.45. He then went on to consider the proportionality arguments raised by the Defendant, applying the new proportionality test.
The damages were agreed in the sum of £20,000.00 in this matter and the Master considered the costs to remain disproportionate after the assessment. He therefore applied a further discount and came to the conclusion that the figure of £83,964.80 was reasonable and proportionate.
Upon applying the new proportionality test, the Master considered the ATE premium separately from the remainder of the costs. Both the costs in general and the ATE premium were found to be disproportionate.
The costs were reduced from £105,909.45 to £53,964.80 and the ATE premium was reduced from £61,480.00 to £30,000.00. Interestingly, and perhaps worryingly, the ATE premium was allowed in full following the original assessment and then reduced by more than 50% when applying the proportionality test.
Unsurprisingly, the Claimant appealed and the matter has been set down for a hearing on 5 December 2016. Watch this space!
We are delighted to welcome Lizzie Dudley to the Sextons team.
Lizzie has worked in legal costs for 8 years and has returned to work in costs following a few years working in the financial sector.
Lizzie has a particular specialism in Industrial Disease cases and she can be contacted at email@example.com.
Lizzie has already been out to attend a recent costs conference and has been busy getting up to speed with the various changes in costs since the introduction of the Jackson reforms.
Welcome to the team Lizzie, we are sure you will have a long and successful career with the firm.