BOOTH -v- BRITANNIA HOTELS LTD

Whilst working as a chambermaid at the Defendant’s hotel, the Claimant suffered a minor crushing injury to her hand. Proceedings were issued and the Defendant paid £1,000.00 into Court.

The Claimant then reported symptoms which led to the diagnosis of reflex sympathetic dystrophy (RSD). This had a dramatic effect upon the value of the claim. A split trial took place and judgment was given to the Claimant on liability with damages to be assessed. The Defendant increased the payment into Court to £2,500.00.

The Defendant then obtained surveillance evidence which showed the Claimant having a full range of movement in her hand which was inconsistent with RSD. The Claimant submitted a Schedule of Loss of £617,000.00. The video was disclosed and the Claimant subsequently accepted the £2,500.00 standing in Court plus her costs on the standard basis.

The Claimant’s solicitor submitted a Bill of Costs totalling approximately £92,000.00 and the Defendant argued it was unreasonable to incur costs of this level for a claim which settled for £2,500.00. The Defendant asserted that the Claimant should recover the costs relating to liability and those relating to quantum, but limited to the costs required to prove a claim of £2,500.00. The Claimant replies by drawing attention to the Consent Order and criticising the Defendant’s late disclosure of the video evidence.

Before District Judge Buckley it was stated that the video evidence could have been disclosed earlier thus limiting costs and accordingly the Claimant was awarded the liability costs and 60% of the quantum costs. The liability costs were assessed at £16,000.00 and the quantum costs at £34,688.33.

The Defendant appealed, arguing that the apportionment was arbitrary and the assessment should have been on the basis of what it would have been reasonable to expend to pursue a claim of £2,500.00. Mr Justice Douglas Brown held that the District Judge was fully justified in the approach she took given the Defendant’s decision to withhold the video evidence and he therefore refused to interfere with her discretion.

On appeal it was held that the District Judge had been wrong to simply deal with the costs on a percentage basis. She should have considered whether or not each item in the Bill was justified and disallowed all those which were not. At this stage, and not any earlier, it would have been appropriate to consider awarding a percentage of the sum claimed, but the percentage would have to be such that at the end of the exercise the sum awarded was reasonable for the damages recovered.

SHIRLEY -v- CASWELL

The Defendant, a barrister, provided some advice to the Claimants regarding a dispute between them and Challock Parish Council, which the Claimants alleged was negligent and which caused them to enter into protracted litigation which they were only able to extract themselves from after payment of heavy costs. In addition, the Claimants alleged that the negligent advice prevented them selling the property that was the subject of the dispute.

The matter proceeded to trial and judgment was entered for the Claimants on liability. The parties were able to agree quantum following the trial judge’s decision on liability. The judge found that the Defendant had been negligent but not in all the respects alleged by the Claimants and he awarded damages of £156,343.62. The judge didn’t feel that the Defendant’s advice had led to a loss of opportunity to sell the property and he accordingly awarded no damages under this head.

The judge felt that the fact that the Claimants had not succeeded on all issues and had recovered damages substantially less than those claimed ought to be reflected in the Order for costs. He therefore directed that the Defendant should pay the Claimants 60% of their costs and the Claimants should pay the Defendant 40% of his costs.

The Claimants appealed and on appeal it was held that the judge’s finding that the Defendant’s advice had been negligent and the extent to which that advice had been negligent could not be challenged. Furthermore, it was held that the judge had been right to exclude certain heads of damage on the basis that there was no causal link.

As regards the costs Order, it was held that the judge was wrong to allow the Claimants only 60% of their costs, as by awarding this percentage he had taken account of the heads of claim abandoned by the Claimants. The costs associated with abandoned issues should be disallowed and by taking them into account when making a special Order for costs there was a risk that the Claimants would be doubly penalised. They would be deprived of costs under the Order and deprived of them again at Detailed Assessment.

However, the judge was right to allow the Defendant 40% of his costs by way of reimbursement for the costs incurred in relation to the abandoned issues. Thus, the appeal was dismissed save for the appeal against the costs Order which was allowed to the extent of deleting the percentage reduction applicable to the Claimants’ costs. The Claimants should have the whole of their costs subject to assessment, but they are to pay 40% of the Defendant’s costs.