Partial relief from sanction for claimant who submitted partial budget

Nuts: Allergic reaction led to claim

A claimant who submitted a budget that did not include figures for trial preparation or trial has won relief from a decision that limited the entire budget to court fees only – but only for those parts of the budget that were completed.

Mr Justice Walker found that Master Thornett at first instance had failed to consider whether to disapply the sanction under CPR 3.14, which applies when a budget is not filed.

Page v RGC Restaurants Ltd [2018] EWHC 2688 (QB) was a claim against a restaurant owned by the defendant that served the claimant – who suffers from a severe nut allergy – a milkshake containing cashew nuts, having told him that it would be a safe product. He suffered brain injury as a result of his reaction.

Master Thornett granted summary judgment in favour of Mr Page on primary liability. Issues around contributory negligence, causation and quantum remain to be tried.

A case and costs management conference (CCMC) was set for December 2017 ahead of which City firm Fieldfisher, for Mr Page, prepared what was called an “interim costs budget” completed up to trial preparation and trial, for which it entered zero on the basis that it thought a second CCMC would be needed after the initial medical evidence was considered so as to decide whether any further expert reports were required.

Fieldfisher said this was a proportionate way to deal with the case.

RGC’s budget, prepared by Keoghs, made no reference to a second CCMC but budgeted for a pre-trial review (PTR). It also included sums for trial preparation and trial.

Following discussion, each side agreed the other’s budget. They included a second CCMC/PTR, but at the hearing, Master Thornett was not persuaded that one would be needed.

He expressed concern that the agreed directions did not take the case through to trial and that, by not including those latter phases, the claimant had not filed a budget that complied with the CPR.

He said the rule 3.14 sanction applied and the claimant’s budget was limited to applicable court fees only.

On appeal, Walker J rejected the argument that, because the claimant had submitted a costs budget, the master was wrong to hold that rule 3.14 was engaged.

He said a contention that only a total failure to file a budget engaged the sanction was precluded by the Court of Appeal decision in Mitchell – though that ruling did not concern an incomplete budget, Walker J said the approach taken was “equally applicable”.

The other major limb of the appeal was that CPR 3.14 provides that the sanction will be imposed “unless the court otherwise orders” and that the master had not considered this. Walker J accepted this.

He then used the Denton approach to decide whether to make an order which disapplied the sanction.

He found the breach “moderately serious and moderately significant” and that while the decision to work towards a second CCMC was honestly done, it was wrong. “The culpability amounted to negligence, but it was not gross negligence.”

On the third stage – considering all the circumstances of the case – the judge said the master’s order was unjust: “It would provide RGC, which had been in agreement with the course proposed by Mr Page, with the benefit of the give and take that had occurred in negotiations, while at the same time depriving Mr Page of almost everything.

He concluded that the CPR 3.14 sanction should not be applied to those parts of the agreed budget up to trial preparation and trial, but should be to those phases.

“In my view it is necessary to apply that sanction to those phases in order to recognise the importance of the considerations identified at CPR 3.9(1)(a) and (b).”

The judge said he was conscious that the Court of Appeal in Mitchell warned of dangers in a partial sanction.

“The present case, in that regard, seems to me to be exceptional. There is an unusually clear dividing line between the parts of the budget which were satisfactory and those which were not, and an equally clear dividing line between those consequences of a sanction which would in all the circumstances be unjust, and those which would not.”


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