The Beautiful Game?
THE BEAUTIFUL GAME?
It has been said that football is the beautiful game. Debates about the merits of this description may rage but there is no doubt as to its worldwide appeal. Hype and controversy abound, no doubt fuelled by the passion that football inspires.
Played well, with finesse and skill, football can be a joy to watch, even among those who are fair-weather fans where passion only erupts at major tournaments.
It is not only beautiful, but can be a dangerous one, both on the pitch and in courtroom battles that may ensue.
This was a judgment on costs arising from a liability trial, where liability was determined as to the First Defendant Dr Mills at 30%, and the Second Defendant the Football Club at 70%.
Mr Justice Hickinbottom described the sad background in this simple statement, which belies the life-changing nature of the injuries received:
‘The Claimant is a young man who, whilst playing professional football for the Football Club at a match in Belgium on 4 August 2006, suffered a cardiac arrest and consequent severe brain damage.’
Having found for the Claimant, and apportioned liability between the Defendants, Mr Justice Hickinbottom was asked for time to make consequential submissions.
Needless to say, important to the parties, these submissions included the costs, and judgment was reserved.
If the continuing football reference can be forgiven, Mr Justice Hickinbottom, picked his way carefully through the conflicting arguments, like a skilful player passes opponents of varying degrees of skill and tenacity. His ultimate goal was a judgment that would ‘do justice as between the various parties in this claim.’
The full judgment can be read and studied, no doubt debated over as football pundits do a match.
Here, there are a few pointers to take on board, when considering ‘tactics’ in this ‘beautiful’ game of costs:
1. Make a reasoned Part 36 offer. The Claimant offered to accept 95% of his damages against the 1st Defendant. This offer was not beaten and partway into the trial liability was admitted in full. As such there was no issue over being entitled to costs on the indemnity basis from when the offer could have been accepted.
2. In view of the apportionment on liability costs should follow the same proportion, but it was unfair that the 2nd Defendant should take any blame for the ‘guilty’ player. The one who ‘fouls’ should take the blame.
3. The referee’s decision is ‘final.’ How galling that can be! Within the proceedings certain parts of the claim were abandoned by the Claimant, with specific decisions on costs consequences, e.g. ‘no order for costs on the withdrawal.’ The Defendant tried in effect to revisit those decisions when addressing liability for costs overall. This was rejected.
4. ‘Share the blame.’ On the advice of Counsel, the 1st Defendant made ‘Without Prejudice save as to Costs’ offers to the 2nd Defendant. Although not Part 36, and ultimately making no difference here, the Judge did say the offers were unreasonably rejected. In other circumstances those offer might have made a significant difference to the costs liability between the Defendants.
The complexities of costs require expert guidance from seasoned professionals, just as those participating in the beautiful game benefit from the expertise of skilled coaches and others.
PIC offer the benefits of expertise and the ability to analyse the ‘game’ of costs to provide insight into how to win.