Broom & Anor v. Archers & Ors

Dominic Woodhouse

Our Dominic Woodhouse – Advocate/Training Manager reports on the case of Broom & Anor – v – Archers & Ors

In a recent decision of the Queen’s Bench Division in Broom & Anor – v – Archers & Ors, the Court was tasked with considering an Application for variation of a Costs Management Order, based on a mathematical error in the original CMO, and what were contended to be significant developments in the litigation.

Mathematical Error

Following the original budgeting hearing, rather than the parties filing and serving amended budgets to reflect the decisions made by the Court at the CCMC, the amounts of the parties’ approved budgets were incorporated into the Order in the form of tables, and which apparently contained some error in arithmetic which was not noticed by the parties until some time later.

Paragraph 7.7 of PD 3E requires that after its budgeted costs have been approved or agreed, each party shall re-file and re-serve its budget in the form approved or agreed with re-cast figures, annexed to the order approving the budgeted costs or recording the parties’ agreement.

In practice we find that this provision is rarely complied with entirely; most Courts require front sheets only of the budget to be filed within a specified time, with the Order confirming the total amount of the approved budget, with a minority making provision for the very specific requirements of the practice direction. As the Courts embrace the Jackson-era drive to efficiency and costs saving, some Courts (with the assistance of the party with carriage of the Order) will incorporate the approved budgets in tabular form within the body of the order, as appears to have happened here.

The approach has much to commend it. There were 16,546 multi-track claims in the County Court alone in 2015. Whilst admittedly not all will have proceeded all the way to budgeting, assuming that the additional work generated by having to re-cast the budget occupies six minutes in each instance for each party, and that only half of those claims have an approved budget, at an hourly rate of, say, £200.00, that still results in potential savings of £330,920.00. This says nothing of cases in other Courts.

Whilst the Court suggested that had the parties complied with the provisions of PD 3E the error would have been noticed sooner, there does not seem to be much greater probability of the error being noticed with an entirely re-cast budget than with incorporation of the figures in the order; re-casting the budget could well result in more frequent errors.

A full report of the judgment is not yet available, though it would appear that the Court showed mercy and allowed variation of the budget in respect of the error.

Significant Development

The Claimants had engaged the Defendants in relation to construction works on their property, and which the Claimants alleged were inadequate resulting in substantial remedial works at an approximate cost of £2.6 million plus VAT. With the remedial works expected to take in the region of 18 months to two years, and alternative accommodation estimated to cost £10,000.00 to £12,000.00 per week, damages under this head were estimated between £720,000.00 and £1,152,000.00.

When the matter was originally budgeted in April 2017, the Claimant’s budget was set on the assumption that there would not be a need for any further consideration of the pleadings by the experts. The First Defendant however then made amendments to its pleadings which would result in the need for significant amendment of pleadings by the Claimant. There was a further need to consider a number of complex, alternative remedial schemes.

The Court accepted that these matters amounted to a significant development and in the circumstances the Court agreed to vary the Claimant’s budget from £766,000.00 to £840,580.17, apparently also ‘mopping up’ the mathematical error in the original order.

This is a happy tale then of sorts; mercy shown by the Court for human error, and a recognition of matters warranting variation of an approved budget.

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