Abbott v MOD: What if those “Excessive” Costs were Vulnerability Costs?
Written by Nick McDonnell, Director and Costs Lawyer, Kain Knight Manchester.
One aspect of Abbott v Ministry of Defence [2026] EWHC 2083 (KB) which particularly caught my attention was Garnham J’s observation at paragraph 75 that the Court had:
“real concerns about the costings we have received generally but particularly as regards the hourly rates claimed, the total number of hours claimed, the seniority of the solicitor engaged on some of the tasks involved, the appropriateness of the levels of delegation adopted and the disbursements.”
There is nothing objectionable about that scrutiny. Those are precisely the matters one would expect a costs judge to examine closely on detailed assessment.
What is striking, however, is the apparent absence of any consideration of vulnerability.
This litigation potentially affects an enormous cohort of serving and former military personnel, many pursuing claims arising from hearing loss and tinnitus. The Court itself observed that perhaps as many as 100,000 military personnel may ultimately be affected. It is difficult to imagine that, within a cohort of that size and nature, there are no claimants who would properly be regarded as vulnerable for the purposes of the CPR.
That does not mean that hearing loss automatically establishes vulnerability, nor does the judgment provide evidence that the particular costs questioned at paragraph 75 were caused by vulnerability. But it does raise an important question: was vulnerability being identified, recorded and translated into the costs claim?
CPR 44.3(5)(f) expressly requires the court, when considering proportionality, to take account of “any additional work undertaken or expense incurred due to the vulnerability of a party or any witness”.
That provision is important because the consequences of vulnerability can manifest themselves in exactly the areas identified by Garnham J.
A vulnerable client may require more time. They may require repeated or adapted communications, longer conferences, additional explanations or reasonable adjustments. Their circumstances may justify the involvement of a more experienced solicitor. They may require additional support or disbursements. What might otherwise appear to be excessive hours, inappropriate seniority, inefficient delegation or unnecessary expenditure may, in an appropriate case, be the reasonable cost of enabling that person to participate effectively in the litigation.
Yet CPR 44.3(5)(f) cannot operate effectively if vulnerability is never identified and the additional work attributable to it is never recorded.
Of course, we do not know from the judgment whether Hugh James had systems in place to identify vulnerability, whether vulnerability-related costs were incurred, or whether any such costs formed part of the figures before the Court. Nor does it appear that the Court was specifically invited to consider CPR 44.3(5)(f). It would therefore be unfair to criticise the judge for failing to take account of an argument which may never have been advanced.
But that is perhaps the more interesting point.
If solicitors do not identify vulnerability at the outset, incorporate vulnerability into their working practices and contemporaneously record the additional work and expense it generates, there may be nothing for the costs lawyer ultimately to identify and nothing for the court to recognise under CPR 44.3(5)(f).
The result is that vulnerability-related expenditure risks losing its character altogether. Additional time simply becomes “too many hours”. Appropriate senior involvement becomes “a lack of delegation”. Necessary adjustments become questionable “disbursements”. The court sees the additional cost, but not necessarily the reason for it.
Had identifiable vulnerability-related costs been presented and evidenced in Abbott, the concerns expressed at paragraph 75 might still have been expressed. But they might have been expressed differently and some of the expenditure which presently attracted concern might have been capable of a specific explanation by reference to CPR 44.3(5)(f).
For me, that is an important practical lesson from the judgment.
Identifying vulnerability is not simply a client-care or case-management exercise. It is a costs exercise too. If vulnerability increases the reasonable cost of litigation, the solicitor must identify it, record it and establish the causal link between the vulnerability and the additional work or expense. Otherwise, by the time the matter reaches detailed assessment, the opportunity to rely meaningfully upon CPR 44.3(5)(f) may already have been lost.
Nick McDonnell is a Costs Lawyer and Director with Kain Knight Costs Lawyers. With almost 30 years’ experience in civil litigation, he is a recognised authority on a range of issues concerning costs in civil litigation.
In his upcoming book, Vulnerability and Costs (Ensuring Access to Justice in Modern Civil Litigation), he provides practical guidance on identifying vulnerability, recording and justifying the extra, necessary work whilst navigating and applying the rules on reasonableness and proportionality to those vulnerability related costs.
