PROPORTIONALITY AND CLINICAL NEGLIGENCE: ANOTHER CASE FOR FIXED COSTS
the Senior Courts Costs Office considered the costs in a clinical negligence case which had settled for £3,250.00.
At an oral hearing the Master broadly upheld his decision made on provisional assessment that the costs claimed of £72,320.85 were disproportionate and should be reduced to £24,604.40.
This included a reduction in the After-the-Event insurance premium from £31,976.49 to £2,120.00 and experts’ fees from £18,036.00 to £9,000.00.
All of the work was post 1 April 2013 and therefore governed by the new rule on proportionality which means that even if work is reasonably and necessarily done it can still be disproportionate.
The Master criticised the claimant’s solicitors for not planning the necessary work and the way to approach the matter, given that they knew that this was a low value claim which, at its highest, was worth £5,000.00.
Here the court quoted with approval the passage from HH Judge Alton in Birmingham County Court on 22 June 2000 in an unnamed case, itself approved by the Court of Appeal in Jefferson v National Freight Carriers Plc  EWCA Civ 2082:
“In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost. While it is not unusual for costs to exceed the amount in issue, it is, in the context of modern litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality.” (Paragraph 19 of the judgment).
Here the Master said that that was even more relevant today as the rules regarding proportionality are now much more onerous.
The Master also held that additional liabilities, here the ATE premium, fall to be considered in the context of proportionality in relation to post 1 April 2013 cases.
ATE premiums remain recoverable in clinical negligence cases in relation to the costs of medical reports relating to liability and/or causation.
These are governed by the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No. 2) Regulations 2013.
The Master had this to say:
“Furthermore, it is often the case that the fee claimed for a medical report includes the fee charged by a medical agency. I query whether any attempt is made by the solicitors or the insurers when calculating the premium, to distinguish between the actual cost of the report and the fee paid to the medical agency.”