Can a lawyer’s attendance at Case Management Meetings and upon Deputies be included within a costs budget?
Kain Knight’s Kristie Thomson considers whether a solicitor’s time costs for attending on case managers and deputies are claimable, in principle, at all as costs following the judgment in our case of Hadley v Przybylo [2023] EWHC 1392 (KB)
Costs Budgeting is heading back to the Court of Appeal’s docket following the judgment of Master McCloud in Hadley v Przybylo [2023] EWHC 1392 (KB).
Master McCleod’s “Judgment of Soloman” considered whether the costs of a lawyer’s attendance at Case Management Meetings and upon Deputies were costs that could properly be included within a costs budget (and therefore payable in principle by the opponent), and if so, in what phase?
The Claimant had, within the Issue/Statements of Case phase, claimed costs for regular attendances on the Case Manager and the Deputy to assist in the preparation and maintenance of the Schedule of Loss. It was contended that these attendances were both reasonable and necessary in ascertaining the quantum element of a claim.
The Defendant, despite having included costs for attendance at one of the Case Management meetings themselves, argued that ‘costs’ of this nature were inherently non-progressive and therefore could not be claimed in the cost budget.
Accepting the Defendant’s premise that ‘costs’ were those incurred in the progression of litigation, Master McCloud deemed the nature of the costs in issue to be non-progressive, not claimable at all as costs and sought to approve the Claimant’s estimated costs in the Issue phase at £20,000.00, some £48,400.00 less than what was claimed.
In doing so, Master McCloud suggested that costs of this type could be claimed as part of the damages or dealt with at detailed assessment outside of the budgeted phases. These seem flawed approaches.
The costs budgeting process aims to promote transparency and certainty for parties engaging in litigation. Knowingly incurring costs in the progression of the claim but intentionally omitting them from the costs budget only to claim them at the end to be assessed, seemingly subverts the very intention of the cost budgeting process. One would argue the door is shut to this approach, even before overcoming the ‘good reason’ hurdle is considered.
Similarly, claiming costs for work done by the Solicitor under the cover of the retainer agreement in their pursuance of the Claimant’s claim surely cannot belong within the damages claim. This approach must give rise to arguments that currently accepted non-recoverable solicitor client costs could be claimable within a Schedule of Loss.
Interestingly, in the alternative, the Master commented that should costs of the type in dispute be deemed recoverable then the preference would be to have those costs placed into bespoke phases, a practice not unusual in such litigation.
It is easy to see the significance of this decision. The premise that recoverable costs are those incurred in the progression of the litigation only as opposed to those incurred in the progression of the claim generally, does not seem palatable and will surely be an issue that the Court of Appeal is asked to address.
Tortious litigation has long acted as a vehicle to put a Claimant back in the position they would have been in, but for the index event, and it is difficult to accept that costs incurred in the progression of the ‘claim’ are not properly recoverable between the parties by way of the costs budget.
When viewed against the backdrop of the impending expansion of Fixed Recoverable Costs, one wonders whether this decision will push the burden of those costs onto Claimants themselves, a daunting prospect when the FRC expansion is already widely expected to bite into damages.
Permission to appeal was granted and the CPRC was invited to give guidance.
The Claimant was represented by Chris Barnes KC and Costs Lawyer, Mark Brighton of Kain Knight, who were instructed by Gamlins Solicitors LLP.
The Defendant was represented by Andrew Davis KC, instructed by Keoghs LLP.
