To attend or not to attend, that is the question!!

To attend or not to attend, that is the question!!  Hadley (a protected party by his litigation friend) v Przybylo [2023] EWHC 1392 (KB).  Read on if you have clients with care teams in place or with ongoing medical treatment.

In this case, a complex and very serious personal injury claim, Master Victoria McCloud was required to deal with costs and case management.

Budgets had been prepared and filed with the Court. The Claimant’s budget was large, exceeding £1million and Master McCloud had ordered the parties to use ADR to attempt to deal with the issues in the budget before she made decisions on any phases which remained outstanding.

ADR had taken place, with qualified Costs Lawyers involved, and the process had been successful in resolving most of the areas of disagreement between the parties. However, there was one specific point where agreement could not be reached and therefore a ruling from Master McCloud was required.

The parties were unable to agree on whether costs associated with the Claimant’s fee earners attending case management meetings with medical and other professionals, and meetings with/attendances on Court of Protection deputies could be included within the costs budget, specifically with the Issue/Statements of Case phase.

The Claimant submitted that attendances of fee earners at case management meetings and deputy meetings were required to have a full understanding of the Claimant’s ongoing medical and day to day care requirements, and to enable the maintenance of the Claimant’s Schedule of Loss, which was constantly evolving as the claim proceeded.

The Defendant countered with arguments that the attendances did not assist with the case progression and the information could be obtained readily by email or telephone. The Defendant also referred to the guidance provided by Practice Direction 3D regarding work to be included within the Issue/Statements of Case phase. The Defendant summarised the work recoverable within the phase as:

“Work relating to the preparation of the Claim Form, the Particulars of Claim, the issue and service of proceedings, consideration of the Defendant’s statements of case, preparation of the Schedule of Loss, and conferences with counsel on the statements of case, and any amendments to the statements of case.”.

Master McCloud accepted that it was a general principle that ‘costs’ were legal costs which were incurred in the progression of litigation and therefore costs which were inherently non-progressive were not in her judgment ‘costs’ properly claimable in a budget between the parties.

The Master then addressed the question of whether the Claimant’s proposed costs were in principle progressive of the litigation? She opined that the question to be asked was “Does an item of a specific type in a budget materially progress the case?”.

Master McCloud ruled that having a fee earner attend rehabilitation case management meetings was not progressive and could not therefore be caught within the umbrella of “costs”. Likewise, a fee earner attending on deputies to obtain input for the ongoing drafting of the Schedule of Loss was non-progressive. The Master suggested that information regarding case and money management could be obtained by the occasional letter to the case manager and deputies.

The Claimant had sought future costs of £58,400.00 for the Issue/Statements of Case phase and Master McCloud allowed the figure of £20,000.00 for the phase as a whole.

Because of the importance of her decision, Master McCloud gave leave to the Claimant to appeal and indicated she would hear argument as to any leapfrog in view of the impact the decision might have more widely.

To summarise – you must consider in detail whether fee earner attendance in person is necessary at meetings with medical experts regarding your client’s ongoing treatments and/or with care teams regarding the constantly evolving requirements of a protected party. A Court Officer dealing with the assessment of the work claimed will need to be satisfied the attendance was necessary to progress the claim and that the same details of, or a report of, the meeting could not have been obtained by email exchange or telephone call with the experts/care team involved.

Think carefully before setting out to attend these meetings – do you really need to be there? If you are unsure, it is probably best not to attend and to face the risk of those attendance costs (including any travel time/expenses) being disallowed on assessment.

If you are uncertain whether an attendance will be considered progressive to your case, please do not hesitate to contact PIC and we will be happy to provide an opinion on the same.

Mike Fitsell, Costs Lawyer