The fact that a clinical negligence case had become a quantum-only dispute did not take it out of the costs management regime, meaning that the claimant’s failure to serve a costs budget restricted its recoverable costs to the court fees only, the Court of Appeal has ruled.
The case of Suriaya Jamadar v Bradford Teaching Hospitals NHS Foundation Trust, as reported on Lawtel, involved a £3m claim over negligent treatment that led to the amputation of one of the claimant’s legs.
According to Lawtel, the trust initially denied liability and the court sent the parties a form N149C stating that as it was a defended claim it appeared to be suitable for allocation to the multi-track. Shortly afterwards, the trust admitted liability and the form N149C was revoked, with judgment entered against the trust for an amount to be determined.
The parties received notice of a case management conference and though the defendant sent the claimant its costs budget, the claimant did not provide his own, despite requests. At the conference the district judge gave directions, including the appointment of five experts on each side, leading towards a five-day trial on quantum.
He also approved the trust’s costs budget and said the claimant’s failure to produce a costs budget meant his recoverable costs be confined to court fees.
The claimant applied unsuccessfully to vary the order or for relief from sanctions. A circuit judge refused his appeal, holding that the claim was self-evidently a multi-track case and that the appellant had been in breach.
On second appeal, the Court of Appeal – with Lord Justice Jackson giving the ruling, with which Lindblom LJ agreed – agreed that the case was self-evidently for the multi-track. With an extensive agreed list of expert witnesses and a claim worth around £3m, “nobody could seriously think it could sensibly proceed as a fast-track case”.
The Lawtel report continued: “The fact that it was quantum-only did not take it out of the costs management regime. Quantum-only trials could be very expensive, particularly one with five expert witnesses for each side. Therefore the automatic sanction in rule 13.4 came into operation. The circuit judge had been right to uphold the district judge’s decision.”
The decision not to grant relief from sanctions was also upheld. While other judges might have been more lenient, the circuit judge’s decision was within the ambit of his discretion. “He had been very critical of the appellant’s solicitor’s decision not to produce a costs budget. His comments were proper for him to make as part of his exercise of discretion in applying the three-part test in Denton.”
Wilsons, instructing Colm Nugent of Hardwicke, acted for claimant, while Hempsons, instructing Matthew Smith of Kings Chambers, represented the defendant.