The High Court is set to provide guidance on whether a costs judge who reduces the hourly rates for incurred costs should then do the same to budgeted costs.
It follows conflicting lower court decisions, one of which – RNB v London Borough of Newham – is now being appealed.
In that case, Deputy Master Campbell ruled that reducing the hourly rates for the incurred costs meant there was a “good reason” to reduce the budgeted costs too.
To do otherwise would mean that the claimant would recover an hourly rate as set out in Precedent H for the budgeted stage “at a level that significantly exceeds the figure I consider to be reasonable and proportionate for the pre-budget stage”.
However, last month in Bains v Royal Wolverhampton NHS Trust, District Judge Lumb, sitting as a regional costs judge, expressly disagreed with this position, according to Michael Fletcher, a costs lawyer and chartered legal executive at Manchester firm Glaisyers who acted for the claimant.
He reported: “Judge Lumb held that to reduce hourly charging rates for budgeted costs to the same levels as those allowed for the incurred costs, thereby causing a potential departure from the budgeted phase totals, would be to second guess the thought process of costs managing judge and would impute a risk of double jeopardy into the detailed assessment.
“The costs managing judge was not fixing hourly rates, but may have had regard to them when setting a reasonable and proportionate allowance for each phase of the budget. Absent cogent evidence to the contrary, the costs judge simply couldn’t know.
“The clear philosophy and guidance from the senior courts in Merrix and Harrison was to simplify and reduce the scope of detailed assessments. The ‘good reason’ bar was a high one.”
Mr Fletcher, who was instructed by Thompsons, said there has been no appeal by the defendant, possibly because RNB was being appealed.
London firm Bolt Burdon Kemp acted for the claimant in RNB. Sam Hayman, senior associate in its costs team, confirmed that the High Court has granted permission to appeal on the hourly rates point.
A decision is still awaited on permission to appeal Deputy Master Campbell’s finding that in any case the sums sought were disproportionate.
Mr Hayman said: “The judgment has potentially wide-ranging impact across the detailed assessment process, with Deputy Master Campbell having effectively driven a coach and horses through Harrison and the wider budgeting process.
“We are bringing this appeal due to the potential future impact across all detailed assessments if the decision goes unchecked, not just for the impact on this standalone claim.”
He said the firm has subsequently and successfully run the same point before Master Whalan.