Successful claimant denied costs because of “inadequate” solicitor
A district judge has refused a successful claimant their fixed costs because of the conduct of the solicitor.
According to Francesca O’Neill, a barrister at 1 Chancery Lane who acted for the defendant in Hussain (I) and Begum (II) v Aviva Insurance Limited, two claimants brought claims for whiplash type injuries arising from the same incident. The first claimant required an interpreter, but had not properly certified the translation of the particulars of claim. The claimant did not deal with the issue and the judge struck out the claim at trial because there was no good reason for the problem still to be live.
The trial proceeded with the other claimant. Ms O’Neill wrote: “Although there were inconsistencies and problems with the evidence as between the various documents in support of the claim, this was mainly down to the ineptitude of the claimant’s solicitors in obtaining proper medical evidence and preparing the bundle. The claimant himself was not dishonest and liability had been admitted. The DJ awarded a modest sum for general damages, just above the threshold for the fast-track.”
But on costs, the situation was “quite different”, she continued. In respect of the costs relating to claimant whose claim had been struck out, the DJ accepted her submission that the solicitors should have to show cause as to why they should not be subject to a wasted costs order. The DJ made no order as to costs, save for the court fees, for the other defendant because of their conduct of the claim.
“Mere success at trial is, therefore, no guarantee that an inadequate solicitor will recover their costs,” Ms O’Neill, who was instructed by DAC Beachcroft, observed.
Receiving party must seek costs order first in fixed-cost disputes
In fixed-costs cases where there is a dispute over the costs payable, the receiving party should make an application to the court for a costs order and for the costs to be assessed, His Honour Judge Lethem has ruled.
In Ivanov v Lubbe in Central London County Court earlier this year, the circuit judge said this would enable the court to decide whether it should order detailed assessment or assess the costs summarily.
In the case, the claimant accepted a part 36 offer but commenced detailed assessment proceedings because there was a dispute over whether a disbursement was payable by the defendant. However, on claims commenced within the low-value protocols, rule 36.20 expressly provides that the court retains the discretion to make a costs order.
He also ruled that there were “strong public policy grounds” for allowing fee-exempt claimants to claim their court fees from defendants rather than the taxpayer. Ordering a defendant to pay the fee, HHJ Lethem said he had “some sympathy” for the argument that it was wrong for defendants to obtain a “windfall” because the claimants had an exemption.
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