Bristow –v- Princess Alexandra Hospital NHS Trust & Ors  EWHC B22 (Costs)
Including items within a Claimant’s bill of costs that should not have been there resulted in their costs of assessment being limited to 80%
The Defendant’s unreasonable refusal to mediate the costs meant that the costs of assessment were awarded on the indemnity basis
This was a clinical negligence case against the NHSLA where the Claimant was successful against one of the five Defendants and consequently presented a Bill of Costs for approximately £239,000.00, which was reduced to £135,486.90 at detailed assessment by Master Simons. As this sum was higher than the Defendant’s offer the Claimant was therefore entitled to their costs of the detailed assessment.
The Defendant argued that the Claimant’s bill had included work done against the 2nd and 5th Defendants that should not have been claimed as the claims against those Defendants had been discontinued and which, according to the Claimant’s own narrative, had been specifically excluded. Master Simons found that the bill did indeed include such work and, as a result, ruled that the Claimant’s costs of assessment should be limited to 80% of what they would have been.
Whilst the Defendant was successful on the above point, that was not the case on the other important part of the judgment.
The Claimant proposed that the parties engage in mediation, which the Court subsequently found to be reasonable, but the Defendant took three months to respond to the proposal, then rejected it on the grounds that the parties were too far apart. The Court ruled that the Defendant had “not given any reasonable reason why they had refused to engage in mediation” and therefore imposed a sanction, ordering the Defendant to pay the Claimant’s costs of assessment on the indemnity basis.
This case clearly offers very useful guidance on both costs and mediation.
It underlines the absolute necessity for solicitors to not only thoroughly check the contents of their bills but also the serious consequences of certifying inaccurate bills. Perhaps above all else, it shows just how essential it is to instruct costs draftsmen for whom the accuracy of their work is paramount.
On the mediation point, the Court could not have been clearer in their criticism of the Defendant for not engaging in the process. Simply saying that you are too far apart to mediate is not, and never will be, a reasonable stance for any party to take. Mediation is there to help in precisely these circumstances! To stubbornly dig ones heels in until the Court assesses the bill and refuse the offer of mediation is not only unreasonable it can, as it did in this case, greatly increase the costs payable.
Both parties in any dispute should be reminded of this case the next time they think about adopting such a stance.
The full judgment can be read here