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England and Wales High Court (Senior Courts Costs Office) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Thaxton v Goodman (A Child) (Rev 1) [2010] EWHC 90182 (Costs) (23 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2010/90182.html Cite as: [2010] EWHC 90182 (Costs) |
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SENIOR COURTS COSTS OFFICE
London, EC4A 1DQ |
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B e f o r e :
Sitting as a Deputy District Judge
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WILLIAM THAXTON |
Appellant |
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- and - |
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AMBER ELIZABETH GOODMAN (A CHILD BY HER LITIGATION FRIEND, CLAUDE GOODMAN) |
Respondent |
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Mr McNair (instructed by Carpenters, Solicitors) for the Respondent
Hearing dates: 23 September 2010
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Crown Copyright ©
Master Haworth, Costs Judge:
BACKGROUND
"On an appeal from an authorised Court officer, the Court will:
(a) rehear the proceeding which gave rise to the decision appealed against, and
(b) make any order and give any directions as it considers appropriate."
THE ISSUES
i) Is Part 45 Section II CPR engaged and therefore the predictable costs regime applies to the circumstances of this case.
ii) Once that question is answered, the Court must then determine how the answer to the first question impacts upon the Claimant's claim for costs.
FACTS
"The client continued to suffer neck pain for two days before disappearing.
The client suffered a nose bleed straight after the accident. This settled after half an hour.
The client suffered some friction burns to her face. These healed after one week.
The client suffered irritation in both eyes. This settled completely after two days.
Physiological symptoms: the client felt shocked and upset after the accident. This continued for one day. The client denied insomnia.
The client suffered some anxiety as a passenger. This continued for two weeks.
The client continues to remain pain-free.
Summary, conclusion and prognosis: The client sustained whiplash injury following impact. The client was pain free after two days."
"Please note that should our client wish to accept this offer, then we believe that this case will settle within the Predictive Costs regime. We would therefore expect payment of damages and costs within the reasonable period of 14 days of acceptance. Any dispute in relation to disbursements will be dealt with separately."
"We trust the offer of £1,000 in respect of general damages may be agreed, subject to acceptance at the Infant Court Approval hearing."
THE LAW
"21.10(1) Where a claim is made
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court should be valid so far as it relates to the claim by, on behalf of or against a child or protected party without the approval of the court.
(2) …………
(3) In proceedings to which Section II of Part 45 applies the court will not make an order for detailed assessment of the costs payable to the child or protected party but will assess the costs in the manner set out in that section."
"45.7(1) This section sets out the costs which are to be allowed in –
(a) costs only proceedings under the procedure set out in Rule 44.12A; or
(b) proceedings for approval of a settlement or compromise under Rule 21.10(2) in cases to which this section applies.
(2) This section applies where –
(a) the dispute arises from a road traffic accident;
(b) the agreed damages include damages in respect of personal injury, damage to property or both;
(c) the total value of the agreed damages does not exceed £10,000; and
(d) if the claim had been issued for the amount of the agreed damages the small claims track would not have been the normal track for that claim."
"45.1(10) The court
(a) may allow a claim for a disbursement of a type mentioned in paragraph 2; but
(b) must not allow a claim for any other type of disbursement.
(2) The disbursements referred to in paragraph (1) are:
(a) the cost of obtaining:
(i) medical records;
(ii) a medical report;
(iii) a police report;
(iv) an engineers report; or
(v) a search of the records of the driver vehicle licensing authority;
(b) the amount …
(c) where they are necessarily incurred by reason of one or more of the claimants being a child or protected party as defined in Part 21:
(i) fees payable for instructing counsel; or
(ii) court fees payable on an application to the court."
"8.9 Where the Part 8 procedure is followed:
(a) …
(b) …
(c) the claim shall be treated as allocated to the multi track and therefore Part 26 does not apply."
"26.6(1) The small claims track is the normal track:
(a) any claim for personal injuries where
(i) the value of the claim is not more than £5,000; and
(ii) the value of any claim for damages for personal injuries is not more than £1,000.
(2) For the purposes of paragraph (1) "damages for personal injuries" means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed.
(3) Subject to paragraph (1) the small claims track is the normal track for any claim which has a value of not more than £5,000.
General rule of allocation
26.7(1) In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1).
Matters relevant to allocation to a track
27.8(1) When deciding the track for a claim, the matters to which the court shall have regard include:
(a) the financial value, if any, of the claim;
(b) the nature of the remedy sought;
(c) the likely complexity of the facts, law or evidence;
(d) the number of parties or likely parties;
(e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;
(f) the amount of oral evidence which may be required;
(g) the importance of the claim to persons who are not parties to the proceedings;
(h) the views expressed by the parties; and
(i) the circumstances of the parties."
APPELLANT'S SUBMISSIONS
"Please note that should our client wish to accept this offer, then we believe that this case will settle within the predicted costs regime."
"We trust that the offer of £1,000 in respect of general damages may be agreed, subject to acceptance at the Infant Court Approval hearing."
THE RESPONDENTS SUBMISSIONS
Estoppel
Part 45 Section 2 CPR
Discussion and Conclusion
The Contract Point
"Please note that should our client wish to accept this offer then we believe that this case will settle within the predictive costs regime."
"We trust that the offer of £1,000 in respect of general damages may be agreed subject to acceptance at the infant court approval hearing."
Estoppel
"A further ground on which in our view the appeal of the plea of estoppel must fail is that the statements in the rent book if amounting to a representation at all constitute a representation of law and not of fact. The view advanced on behalf of the defendant Nicholls was that the statements represented the premises which were the subject of his tenancy were within the Rent Restriction Acts: in other words that they were controlled premises. That is not a representation of fact it is a statement of the result obtained by applying the provisions of the Act to the circumstances of the particular case. It is no easy matter sometimes, as the many decided cases on the subject show, to say whether premises are or are not within the Acts, and a statement to the one effect or the other cannot, in our judgment, be fairly regarded other than as a representation of law."
"It is sufficient to observe that if the documents relied on can be regarded as containing representations, such representations are representations of law not of fact and cannot find an estoppel."
Small Claims Track
The Consequences of Part 45 Section 2 Not Applying
"44.4(1) Where the court is to assess the amounts of costs (whether by a summary or detailed assessment) it will assess those costs –
(a) on the standard basis; or
(b) on the indemnity basis
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(2) Where the amount of costs is to be assessed on the standard basis the court will –
(a) only allow costs which are proportionate to the matters in issue; and
(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party."
"22. Once it is seen, firstly that the child's lack of majority is properly remedied by having a responsible litigation friend and once the proper procedure is seen to be court approved with the safeguards therein contained, it seems to me to be wrong to say that there is any Article 6 factor which operates so as to give any child claimant costs which may be over and above the normal small claims track costs without there being any factors other than that the claimant is a child.
23. Similarly I do not accept the second point made by the District Judge: that it is in the public interest for children to have access to justice in a way that is more than illusory by way of their parents or a guardian. There is nothing to stop a child by its parent or guardian or litigation friend instructing a solicitor but especially with the protections that I have mentioned which are imposed by the rules, there is, it seems to me, no reason why it follows necessarily that the solicitor's costs shall be recoverable against the defendants."
"19. I have quoted the passage from Judge LJ's judgment in Voice and Script above. I accept that what was under consideration in that case was what order a trial Judge should make when making an order for costs. Thus in many cases the problem that occurred in this case will not arise because the trial Judge can actually make an order that costs be assessed on a small claims track basis. I also accept that as Judge Stewart noted, a Costs Judge has no power to alter the order for costs made by the a Judge, and thus make a direction from the outset where costs have been awarded on the standard basis that costs will be assessed on a small track basis. But what lay behind what Judge LJ said reflects what Lord Woolf was saying in Lownds and provided the Costs Judge does not purport to vary the original order or tie himself to assessing by reference to the small claims track it is quite legitimate to give effect as far as possible to the philosophy which lies behind the above statements. There is a real distinction between directing at the outset that nothing but small claims costs will be awarded and giving items on a bill very anxious scrutiny to see whether costs were necessarily or reasonably incurred, and thus whether it is reasonable for the paying party to pay more than would have been recoverable in a case that should have been allocated to the small claims track. Was it for example necessary to have had lawyers and is it reasonable for the paying party to have to pay for lawyers are questions that should arise where a claim should have been allocated to the small claims track."
"14. Those who were responsible for the drafting of the rules – and I include myself amongst them, although I have no memory of actually debating this particular point at the time the rule was considered by the Civil Procedure Rules Committee – must have had the provisions of CPR Part 8 in mind when determining that those cases that would normally have been commenced on the small claims track if they had not been settled should be excluded from the predictable costs or the fixed costs regime under CPR 42.2 because they could, had they wished to do so, have required that any such claim should be treated as having been allocated to the small claims track by amendment of CPR 21.10. That rule requires all approvals to be commenced by a Part 8 claim. There would have been nothing to have prevented the Rule Committee from saying that in cases that would normally have been commenced on the small claims track, that they should be treated for the purpose of approval of proceedings as having been allocated to the small claims track for costs purposes. They chose not to do so, and in my judgment they chose not to do so for a good reason.
15. A claim for damages for personal injuries of as little as £750 that is contested does not require approval because the Judge will determine what the damages are if they are in dispute and award costs on the small claims track regime as everyone will be aware, so to speak, in advance – both claimants and defendant's solicitors.
16. However, when it comes to the approval of a settlement of a child the court, through the rules, is in fact giving a good deal of responsibility to the solicitor who represents and advises a litigation friend and through the litigation friend, of course, the child. It is an important matter that solicitors should take that responsibility seriously and that the court should approve the steps they have taken. Amongst the steps that are required to be taken, except in the plainest case, is the obtaining of counsel's opinion on the merits of the proposed settlement. Often small cases are not "plain" and in a very small claim it would be an unwise solicitor who chose not to seek counsel's advice. Somebody has to pay for that responsibility and that advice. That would not be recoverable under the small claims track because the fixed costs allowed for the solicitors so called "profit costs" is only £70 and whilst the costs of medical reports may be recoverable counsel's fee for advice supporting the settlement would not be recoverable, nor would any time taken by the solicitor to accomplish the same end.
17. Therefore it seems to me that the correct approach is for costs to be assessed under and in accordance with CPR 44.5. All of the factors that the court must take into account in assessing the amount of costs for a multi track case are there set out and well known. It would be open to the defendant in such cases to argue that in reality small claims track case costs represent what is reasonable, but that would not be something that the District Judge would necessarily have to accept because the District Judge would be exercising a discretion as to what the costs should be. The usual arguments would be advanced by each side supported in the usual way by schedules. One would hope that in the majority of cases these matters would be dealt with summarily bearing in mind that the damages are so small and the costs of a detailed assessment in all but the most exceptional case be avoided."