England and Wales High Court (Queen's Bench Division) Decisions

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Cite as: [2010] EWHC 2530 (QB)

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		Neutral Citation Number: [2010] EWHC 2530 (QB)
		Case No: 6SK03795

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

The Courts of Justice
Crown Square
Manchester
M3 3FL

13 October 2010

B e f o r e :

MR JUSTICE KEITH
____________________

Between:

	Carl John Bold	Claimant
	- and -
	Urbisity Ltd	Defendant

____________________

Mr Nicholas Bacon QC (instructed by DWF LLP) for the Claimant
Mr Jeremy Morgan QC (instructed by Withy King Solicitors) for the Defendant
Hearing date: 6 October 2010
Judgment
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Keith:

The claimant, Carl Bold, suffered a catastrophic injury in the course of his employment. He brought a claim against the defendant, Urbisity Ltd, and was awarded damages. The defendant was ordered to pay his costs of the action to be the subject of a detailed assessment if not agreed. Those costs were not agreed, and a detailed assessment took place. It lasted 8 days. The total amount awarded was £324,988.08 inclusive of VAT. When it came to the costs of the assessment, the defendant argued that offers which it had made to settle particular aspects of the assessment proceedings should be taken into account. The district judge who conducted the assessment disagreed. He ordered the defendant to pay Mr Bold's costs of the assessment.

The defendant appealed against the order that it had to pay Mr Bold's costs of the assessment. Permission to appeal was granted by Hickinbottom J. The appeal was due to be heard by me on 6 October. However, the appeal was compromised on the basis that the defendant would pay 71% of Mr Bold's costs of the assessment. What the parties were unable to agree about was the appropriate order for the costs of the appeal.

Negotiations to compromise the appeal had resulted in offers and counter-offers being made. Two offers were made by the defendant by letters dated 13 September. One was that the defendant would pay all Mr Bold's costs of the assessment up to a particular date, and 50% of his costs thereafter. The other was that the defendant would pay 67% of Mr Bold's costs of the assessment. These offers amounted to Part 36 offers, though the 21 day period expired on 4 October, by which time the overwhelming majority of Mr Bold's costs in respect of the appeal would have been incurred. The counter-offer made by Mr Bold's advisers was made on 5 October, and therefore could not be a Part 36 offer. It was that the defendant should pay 75% of Mr Bold's costs of the assessment. It follows that the settlement which was ultimately arrived at was half way between the defendant's second offer and Mr Bold's counter-offer. Since none of the offers were beaten by the party making them, it is not seriously suggested that these offers should affect what order should be made in respect of the costs of the appeal.

The defendant's case on the costs of the appeal is simple. Its aim in bringing the appeal was to reduce its liability for Mr Bold's costs of the assessment. Mr Bold's costs of the assessment are not yet known, since they were ordered to be the subject of a detailed assessment if not agreed, but Mr Jeremy Morgan QC for the defendant told me that 29% of those costs is likely to be in the region of £20,000.00. That is a not insignificant saving, but whatever the saving had been, it is said that the defendant had to bring the appeal to achieve any saving at all, and that on any view the appeal succeeded because the defendant managed to reduce its liability for Mr Bold's costs of the assessment. Accordingly, it is contended that Mr Bold should pay the defendant's costs of the appeal.

This argument does not take account of what the defendant hoped to get from the appeal, bearing in mind that rule 44.3(4)(b) of the Civil Procedure Rules requires the court to have regard to "whether a party has succeeded on part of his case, even if he has not been wholly successful". Although its appellant's notice merely asked the appeal court to make a new order in respect of the costs of the assessment, it is plain – from the reasons which the defendant gave in the appellant's notice for seeking a stay on the district judge's order for an interim payment for half of Mr Bold's costs of the assessment – that the defendant would be arguing that "the vast majority" of Mr Bold's costs of the assessment should not be paid by the defendant. Moreover, if the skeleton argument prepared by Mr Morgan's predecessor in the case for the hearing of the appeal is anything to go by, the issues on the appeal would all have related to the offers made by the defendant to settle particular aspects of the assessment proceedings. Since the defendant's case on the appeal would have been that the district judge had been wrong in the approach which he had taken to those offers, the defendant's case is likely to have replicated the arguments about costs at first instance, which were said to justify an order that Mr Bold should pay the defendant's costs of the assessment: see transcript of proceedings, 22 January 2010, p. 52G. When one looks at the appeal in that light, the defendant has achieved only a limited measure of success. Instead of Mr Bold having to pay the defendant's costs of the assessment, the defendant is having to pay its own costs of the assessment (save for some of its costs which Mr Bold was ordered to pay) and 71% of Mr Bold's costs of the assessment.

In real terms, therefore, although the appeal has been allowed to the extent that the defendant obtained a modest reduction in its liability for Mr Bold's costs of the assessment, the saving it has achieved is nothing like the amount it was apparently seeking to achieve. That should be reflected in the appropriate order for the costs of the appeal. In my view, the appropriate order to make is that the defendant should pay 60% of Mr Bold's costs of the appeal (in addition, of course, to its own costs). Those costs will be subject to a detailed assessment if not agreed, since it was agreed that such order for costs as I would make should be subject to a detailed assessment if not agreed. That was because a detailed assessment of the costs of the assessment has to take place, and the detailed assessment of the costs of the appeal should be conducted at the same time.