No.9 of 2002
Anita Giambrone & Ors v JMC Holidays
22 March 2002
Mr Justice Nelson sitting with Assessors
No fewer than 652 people staying at an hotel in Majorca on a holiday provided by the defendant tour operator suffered food poisoning giving rise to claims. The claimants essentially fell into two groups: those who had recovered from their illness within 14 days, and those whose illness lasted longer. Judgment was entered on liability on 5 April 2000, and by 26 October 2001 some 50% of the claims had been settled, including about 250 cases in the up to 14 days category, for agreed damages between £750 and £4,000 inclusive of special damage. Some of the remaining claims were substantial, with allegations of permanent disability including fatigue syndrome and psychiatric symptoms. Causation remained in issue. The Judge accepted that given the nature and size of the task facing the legal representatives it was proper to describe the case as difficult and exceptional.
Four matters of a preliminary nature were considered by the Costs Judge in advance of the substantive detailed assessment, and were the subject matter of this appeal.
The first head of appeal concerned the appropriate allowance for work done by paralegals in relation to generic/circular letters. The claimants sought a flat payment of £10 per such letter, the defendants offering £1, which latter figure was upheld by the Costs Judge. The defendants contention was that the preparation in these letters was simply repetitive, involving only the pressing of a button on the computer. On the appeal it was submitted that £1 per letter represented 36 seconds for dealing with it, including thinking time, and that when the cost of the stamp was deducted that became 24.5 seconds, which was said to be plainly insufficient. The Judge agreed, the ultimate allowance being £3.30 per letter, connected with the next two heads of appeal.
These related to the differential uplift of 65% which the Costs Judge considered appropriate for generic work carried out by paralegals, in contrast to the 120% allowed for such work carried out by the solicitors in the team, in both cases in respect of work done pre CPR. The Judge accepted that it was not only permissible but often appropriate to allow a differential uplift for different fee earners within the legal team, and, on a proper analysis of the facts of this case, it could not be said that the Costs Judge had come to the wrong decision in allowing 65% uplift for this work by paralegals.
The fourth and final head of appeal related to an order which the Costs Judge had made for the claimant to make a witness statement in relation to the indemnity principle, on the basis of correspondence which he had come across during the course of his reading prior to the hearing before him. The Costs Judge had ordered that that witness statement, and any exhibits thereto, to be disclosed not only to him but also to the paying party. The Judge reversed the Costs Judge on this point, holding that he ought to have complied with paragraph 40.14 of the Costs Practice Direction, and should have directed the claimants to produce the witness statement, together with relevant documents, to him alone in the first instance, and then decided whether he wished to put the claimants to their election as to whether to disclose the documents in order to rely upon their contents, or to decline disclosure and rely on witness statements alone. The Judge approved and followed the decisions of Mr Justice Rimer in Dickinson v Rushmer, and Pumfrey J in South Coast Shipping Ltd v Havant Borough Council (No.17 and 18 of 2001), though he distinguished the former case on its facts.