James Pretsell represented the successful Defendant in a hearing in the Manchester District Registry of the High Court in which it was decided at a preliminary hearing before case or costs management took place that costs budgeting should apply in a personal injury case that is pleaded in excess of £30 million.
The Claimant, represented by leading counsel, sustained multiple injuries when the car in which he was a back seat passenger was involved in a serious collision in Burnley on 11th March 2023 in which the driver died.
The fundamental issue in the case concerns the impact or otherwise that the polytrauma sustained in the collision has materially altered the degree and extent of the Claimant’s needs for care and support.
The Claimant is said to exhibit challenging and likely enduring behavioural difficulties as a result of the collision which, it is contended, have fundamentally altered his care needs such that he will reasonably require permanent and high levels of care, case management and neuro input for the remainder of his life. The claim for future care and childcare alone totals almost £23 million. Damages are claimed provisionally and as a PPO.
The Defendant in stark contrast relies heavily on evidence of pre-accident behavioural difficulties that it contends are materially similar in type, seriousness and effect to those exhibited post-accident. It is denied that there is any material difference in the Claimant’s needs. The Defendant’s Counter schedule denies almost all of the heads of loss claimed in full.
The Claimant’s position on costs budgeting was that such a claim is of a magnitude and complexity that costs budgeting would serve no useful purpose and the exception set out at CPR Part 3 r. 3.12.1(b) was engaged. The parties had already undertaken the lion’s share of the preparation required in order to facilitate an unsuccessful JSM before proceedings were issued. To costs manage would serve little to no useful purpose in such a complex and high value claim when so much work fell within incurred costs and so could not be subject to meaningful costs management.
The Court disagreed and emphasised the benefit of costs management in cases of such potential high value. It considered that there was an unfettered discretion to determine whether to costs manage that would turn on the facts of the particular case.
Questions of proportionality, transparency, certainty, encouragement to settle and control of litigation were all relevant to determining whether to costs manage: see, for example, the pros and cons of costs management set out at paras 24 et seq in Sharp v Blank [2015] EW HC 2685 (CH) per Nugee J as he then was.
There was no doubt that this was a case that had potentially very high value indeed and a great deal of complexity.
However, as is set out at Part 3 PD 3E Section 2(f), ‘(a)n order for the provision of costs budgets with a view to a costs management order being made may be particularly appropriate in the following cases…personal injury and clinical negligence cases where the value of the claim is £10 million or more.’
The Court took the view that the parties were in a sufficient state of readiness for trial that reasonable assumptions could be made about each phase for the purpose of costs management. The Court contrasted this case with that of CXS v Maidstone and Tunbridge Wells NHS Trust [2023] EWHC 14 (KB) in which Master Cook took the view that costs management should not apply in a complex claim that was to be subject to a stay and was far from being ready for trial: see, especially para. 37.
So, an interesting case demonstrating that one size does not fit all when it comes to determining whether to costs manage and that value is not determinative one way or the other. The unhappy consequence of this decision is that the author now has to deal with the costs budgets…
James is being led in Wray v (1) Islam (2) UK Insurance by Darryl Allen KC and is instructed by Mark Whalley and Philippa Webster at Keoghs.
Analysis and review produced by James Pretsell of Farrar’s Building. James specialises in personal injury, clinical negligence and disciplinary & regulatory work. He is consistently recommended as a leading junior in the main legal directories, Chambers UK and Legal 500, which describe him as ‘extremely talented’, as someone who ‘delivers an excellent service’, ‘first rate with clients’, and ‘achieves excellent outcomes’.
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