News in brief

Planning officers’ time recoverable, High Court rules

The High Court has ruled that costs representing the time spent by a local authority’s planning officers in assisting with the preparation of an acknowledgement of service in response to an application for permission to apply for judicial review can be recovered, according to London chambers Francis Taylor Buildings.

It said the issue arose in R (Ayres) v. Cotswold District Council (CO/2353/2017), in which the unsuccessful claimant sought to challenge the quantum of the costs awarded in favour of the local planning authority at the paper application stage. John Howell QC, sitting as a deputy judge of the High Court, upheld the earlier decision and made clear that recoverable costs were not limited to those incurred by solicitors and counsel.


Besford “changes mind” over Sutherland ruling

Regional Costs Judge Besford, an honorary ACL vice-president, has concluded that his earlier widely reported decision in Sutherland v Khan “is unsupported and can no longer stand”, according to a report by leading defendant firm BLM, which acted in the latest case of Whalley v Advantage Insurance.

The judgment deals with the costs consequences of late acceptance of a claimant’s part 36 offer in a fixed costs case subject to part 45.

In Sutherland, it was held that the late acceptance of a part 36 offer automatically entitled the claimant to an award of indemnity costs, and provided an escape route out of fixed costs. The basis of the decision applied the Broadhurst principle that a claimant beating a part 36 offer that proceeded to trial, was entitled to escape fixed costs, to cases that did not proceed to trial but were settled by accepting part 36 offers outside the 21 day period for acceptance.

BLM, which said Sutherland has been the subject of “many” conflicting circuit judge appeals, explained: “The central issue is whether fixed, standard or indemnity basis costs apply in fixed costs cases where there has been late acceptance when the court is determining the liability for costs under CPR 36.13(5). Part 36 is silent on this issue save that references are made to CPR 36.17. The defendant should be encouraged to settle before trial without unfair costs penalties, whereas a claimant does not want to be put to additional work without appropriate costs reimbursement.

“In Whalley, it has been confirmed that unless there are ‘exceptional circumstances’ or conduct justifying indemnity costs, the fixed costs regime applies to acceptance of part 36 offers out of time. This provides welcome certainty to a contentious issue. The claimant conceded that late acceptance does not automatically trigger an entitlement to indemnity costs.”


Diamond warns of NHS disaster if damages and costs are not curbed

Costs Lawyer Jim Diamond has warned that the NHS is facing “a disaster of titanic proportions” unless the level of damages and costs in clinical negligence cases is addressed.

In a report published last week, Mr Diamond – known particularly for his hourly rate surveys of City firms – highlighted the recent annual report of NHS Resolution, which showed that it would need £65bn to cover existing and anticipated liabilities, or half of the NHS’s annual budget.

He found the US, with five times the population of England and Wales, only paid out double the amount the NHS does.

“In a decade or two, we will be walking past derelict hospitals which we will tell our children and grandchildren are the mausoleums of what was the National Health Service,” he concluded.

“One of the UK’s greatest achievements. A free service that each and everyone of us use/used directly or indirectly. We can tell them we were constantly humbled by the sheer professionalism, hard work, and dedication of the majority who work within the NHS.

“But we will have to tell them that part of the ‘iceberg’ problem was the damages and legal costs of clinical negligence cases. We are all to blame if we do not change this up-and-coming disaster. We are approaching the situation of ‘last lifeboat’ status, so whatever needs to be done needs to be done now.”

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Costs News
Published date
20 Dec 2017

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