Tribe v Southdown Gliding Club Ltd & Ors

This judgment is in relation to four preliminary issues:

On 19^th July 2000 the Claimant, Mr Tribe, suffered severe multiple injuries. He was piloting a glider which, immediately after a winch launch, nose-dived to the ground. An investigation into the cause of the accident by the British Gliding Association (“BGA”) concluded that the automatic rear elevated control coupling had failed because it was incorrectly adjusted and worn. Responsibility for investigating gliding accidents had been delegated to the BGA by the Department of Transport’s Air Accident Investigation Board.

Mr Tribe consulted Pattinson & Brewer, a firm of solicitors in Central London. On 11^th July 2003 he issued proceedings in the Queen’s Bench Division of the High Court for damages for negligence against the First Defendant, from whom he had hired the glider, the Second Defendant, the owner of the glider, and the Third Defendant, who had been responsible for inspecting the glider and had helped to maintain it. In order to fund that action, on 2^nd May 2003 Mr Tribe entered into a conditional fee agreement with Pattinson & Brewer and purchased an “After the Event” insurance policy under the Accident Line Protect scheme to cover him against the cost of his own disbursements and against liability for the Defendants’ costs in the event that he lost the action. The cover under that policy was limited to £100,000.

Notice of Funding, giving notice that Mr Tribe had entered into the conditional fee agreement and had purchased an insurance policy from Accident Line Protect, was given to the Defendants on 2^nd October 2003.

On 12^th November 2003 a Defence was served by Beaumont & Son, solicitors for the First and Third Defendants. Liability was denied, it was contended that the BGA report was “flawed”, and a positive case that the accident had been caused by pilot error was pleaded. The Defence of the Second Defendant, the owner of the glider, denied liability on his part, alleged contributory negligence, and averred in the alternative that the accident was caused by the negligence of the First Defendant.

On about 19^th November 2003 the parties filed their Allocation Questionnaires. That filed by Pattinson & Brewer on behalf of Mr Tribe was remarkably unhelpful. No details were given of expert or other witnesses. No estimate of the length of trial was given. No estimates of the costs incurred to date or of the overall costs were given. The questionnaire filed by Beaumont & Son on behalf of the First and Third Defendants was much more forthcoming. Four possible witnesses of fact and two proposed experts on liability (one pilot and one engineer) were identified. An estimate of 7 days was given for the length of trial. The costs incurred by these Defendants to date were estimated at £7,500. The overall costs of these Defendants were estimated at £50,000. The solicitors for the Second Defendant identified two possible witnesses of fact (including their client), and estimated their costs to date at £1,250 plus VAT and the overall costs at £15,000 plus VAT.

Lists of documents were exchanged in February 2004. Witness statements were exchanged in April 2004. Experts’ reports on liability only were exchanged in July 2004 between the Claimant and the First and Third Defendants. It would appear that the Second Defendant did not obtain his own expert evidence but intended to rely on that of the other defendants. Sadly Mr King, the Third Defendant, died on 29^th September 2004. At a case management hearing on 18^th October 2004 directions consequential on his death were given. It was also directed that liability should be tried as a preliminary issue with an estimated trial length of 4 days in a trial window commencing on 1^st February 2005. The parties were given permission to adduce expert metallurgical evidence with the reports to be served sequentially: the First and Third Defendants to serve their report first, by 15^th November 2005; and the Claimant and Second Defendant to serve their reports by 13^th December 2005.

The First and Third Defendants served the report of Mr Broadhurst, a metallurgist, on 23^rd November 2004. His conclusions were favourable to the Defendants’ case. The Claimant did not serve any metallurgical evidence, although he had obtained a report. On 20^th January 2005 the Claimant’s solicitors issued an application seeking an order that the trial (which had by then been fixed for 21^st February 2005) be vacated due to the illness of Wing Commander Philips, one of the two liability experts instructed by the Claimant. The next day the Claimant made a Part 36 Offer of £300,000. The Claimant’s application to vacate the trial was consented to. On 4^th March 2005 Master Fontaine made an order debarring the Claimant from serving a metallurgist’s report and giving the Claimant permission to serve an engineering report from another expert in place of Wing Commander Philips.

The five experts on liability (including the new expert instructed by the Claimant) met on 4^th August 2005. By this stage it was clear that their evidence was unlikely to assist the Claimant’s case. On 21^st September 2005 Pattinson & Brewer wrote to Beaumont & Son (who had then recently merged with Clyde & Co):

“We are prepared to recommend our client [sic] to discontinue the claim against your client strictly on the basis that there should be no order for costs. This offer will remain open for acceptance for seven days.”

On 27^th September 2005 Clyde & Co served a Listing Questionnaire and Breakdown of Costs. They estimated the length of trial on liability at 5 days. The Breakdown of Costs, prepared by a Costs Draftsman, showed costs incurred to date of £234,379.14 (of which the profit costs excluding VAT were £146,478) and estimated future costs to include a 5 day trial on liability of £79,984.25. The total was therefore £314,363.39 up to the determination of liability.

It would appear that the Defendants did not obtain any medical evidence in relation to the Claimant’s condition or prognosis and did not obtain any expert evidence in relation to the claim for special damages. They did obtain a report from a Neurologist at a cost of £450 but that was in relation to liability. As I understand it the Neurologist was asked to consider the Claimant’s medical notes and report on the possibility that he had blacked out before the accident.

On 30^th September 2005 the Claimant served Notice of Discontinuance. As a consequence, the three Defendants are entitled to their reasonable costs.

The Second Defendant served a bill in the sum of £19,818.74. That has been settled by the Claimant in the sum of £17,800 which I assume has been paid on his behalf by the ATE insurers.

I am told that the Claimant’s solicitors profit costs were about £30,000 and that his disbursements (I assume not including counsel, who acted under a conditional fee agreement) were about £25,500. I was told by Mr Tribe that the disbursements have been paid by the ATE insurers.

The First and Third Defendants’ bill is in the total sum of £244,509.72 of which £150,640 is profit costs, £57,670.10 is disbursements and £36,199.62 is VAT. That is broadly in line with the breakdown provided with the Listing Questionnaire. It is however nearly five times the amount estimated in the Allocation Questionnaire; which estimate was of course of the total costs to the conclusion of the action including the assessment of damages.

The First and Third Defendants’ bill was lodged at the Supreme Court Costs Office on 28^th September 2006. In view of the matters raised in the Points of Dispute a directions hearing was held on 10^th November 2006 when I gave directions for the determination of these four preliminary issues. On the basis that there would be cross-examination of witnesses in relation to those issues, counsels’ time estimate was 2-3 days. I also directed that an interim costs certificate in the sum of £50,000 should be issued to the First and Third Defendants, that sum to be paid by the Claimant (or his ATE insurers) by 8^th December 2006.

Pursuant to those directions witness statements were served in relation to the evidence of Mr Tribe, Miss Levison, a partner at Pattinson & Brewer, and Mr Barham, a partner at Clyde & Co. I understand that the First and Third Defendants gave notice that they wished Miss Levison to attend for cross-examination.

At the directions hearing the Claimant was represented by counsel who is very experienced in costs law and practice. However shortly before the preliminary issue hearing Pattinson & Brewer came off the record. Mr Tribe is now a litigant in person and he represented himself, without any assistance, at the hearing.

Miss Levison did not attend the hearing for cross-examination. It seems to me that I can still have regard to her statement, but as her evidence was challenged but not tested by cross-examination, I should treat her evidence with care and take these factors into account when considering what weight I should give to it.

Mr Barham did attend the hearing. However Mr Tribe did not feel competent to embark on cross-examination.

In my judgment the estimate of overall costs given by the First and Third Defendants in their Allocation Questionnaire was, when it was given and ignoring hindsight, surprisingly low. For this sort of case I would expect to see a defendants’ bill, being paid by insurers, in a bracket of about £100,000 - £150,000 including the trial and assessment of damages. Although two defendants were being represented, they did have common interests and the additional costs of representing two parties would have been minimal.

Section 6 of the Practice Direction to Part 43 of the Civil Procedure Rules 1998 provides:

“6.6

(1) On an assessment of the costs of a party, the court may have regard to any estimate previously filed by that party, or by any other party in the same proceedings. Such an estimate may be taken into account as a factor among others, when assessing the reasonableness and proportionality of any costs claimed.

(2)

In particular, where –

(a)

there is a difference of 20% or more between the base costs claimed by a receiving party and the costs shown in an estimate of costs filed by that party; and

(b)

it appears to the court that –

(i)

the receiving party has not provided a satisfactory explanation for that difference; or

(ii)

the paying party reasonably relied on the estimate of costs;

the court may regard the difference between the costs claimed and the costs shown in the estimate as evidence that the costs claimed are unreasonable or disproportionate.”

Sub-paragraph (2) was introduced in the 40^th update on 29^th September 2005, the day before the Claimant served notice of discontinuance in this case.

In Leigh v Michelin Tyre plc (Footnote: ¹) the Court of Appeal considered the possible effect on detailed assessment of unrealistic estimates given by a receiving party during the course of the proceedings. The claimant’s solicitor in a personal injury action had given an overall costs estimate of £6,000 plus VAT in the allocation questionnaire and had never revised it. After the action was settled he lodged a bill claiming £21,741 which was assessed by the District Judge at £20,488. The defendant argued on appeal that the claimant should be bound by the estimate. The Court of Appeal handed down judgment on 8^th December 2003, about 3 weeks after the Allocation Questionnaires were filed in the present case.

The Court found that the estimate was hopelessly inadequate and that no satisfactory explanation had been given for the difference between the estimate and the final figure. But there was no evidence that the defendant had relied on the estimate and the Court did not consider “that the claimant should be bound by the estimate for no other reason than that the estimate was made and it was hopelessly too low”. (Footnote: ²)

Dyson LJ, giving the judgment of the Court, explained

[25]

If costs estimates have proved to be a ‘damp squib’, it may be that the reason for this is that judges simply do not know how to take them into account when assessing costs. Another factor may be that, as Judge Mitchell said in the present case, there is a concern that, if para 6.6 is taken seriously, it will merely encourage satellite litigation.

[26]

What follows is not intended to provide an exhaustive guide as to the circumstances in which a costs estimate may be taken into account in determining the reasonableness of the costs claimed, but it should assist judges in the application of para 6.6 of the practice direction. First, the estimates made by solicitors of the overall likely costs of the litigation should usually provide a useful yardstick by which the reasonableness of the costs finally claimed may be measured. If there is a substantial difference between the estimated costs and the costs claimed, that difference calls for an explanation. In the absence of a satisfactory explanation, the court may conclude that the difference itself is evidence from which it can conclude that the costs claimed are unreasonable.

[27]

Secondly, the court may take the estimated costs into account if the other party shows that it relied on the estimate in a certain way. An obvious example would be where A shows that he relied on the relatively low estimate given by B not to make an offer of settlement, but carried on with the litigation on the basis that his potential liability for costs was likely to be of the order indicated in B’s estimate. In our judgment, it would be a proper use of para 6.6 of the practice direction to take such a factor into account in deciding what costs it was reasonable to require A to pay B on an assessment.

[28]

Thirdly, the court may take the estimate into account in cases where it decides that it would probably have given different case management directions if a realistic estimate had been given. To take a rather crude example: suppose that at the allocation questionnaire stage the claimant provides an estimate of overall costs in the sum of £20,000, and claims £50,000 at the assessment. The court might conclude that, if it had known that the claimant's costs were likely to be of the order of £50,000, rather than £20,000, it would probably have given different directions from the ones it gave, and that these would have had the effect of reducing the claimant's costs. It might, for example, have trimmed the number of experts who could be called, and taken other steps to slim down the complexity of the litigation in the interests of controlling costs in a reasonable and proportionate manner.

[29]

In our view, para 6.6 of the practice direction gives the court the power to take matters such as these into account in deciding whether, and if so how far, to reflect them in determining what costs it is reasonable to order the paying party to pay on an assessment. We do not, however, consider that it would be a correct use of the power conferred by para 6.6 to hold a party to his estimate simply in order to penalise him for providing an inadequate estimate. Thus, if (a) the paying party did not rely on the estimate in any way, (b) the court concludes that, even if the estimate had been close to the figure ultimately claimed, its case management directions would not have been affected, and (c) the costs claimed are otherwise reasonable and proportionate, then in our view it would be wrong to reduce the costs claimed simply because they exceed the amount of the estimate. That would be tantamount to treating a costs estimate as a costs cap, in circumstances where the estimate does not purport to be a cap.

[30]

Nor is there any justification for interpreting the provisions in the CPR as equating costs estimates with costs budgets or caps. There is, however, much to be said for costs budgeting and the capping of costs. Some judges have made prospective costs cap orders exercising the general power conferred by s 51(1) of the Supreme Court Act 1981: see, for example, Gage J in AB v Leeds Teaching Hospitals NHS Trust [2003] EWHC 1034 (QB), [2003] 3 Costs LR 405. This is not the place to review these decisions. Suffice it to say that, whatever the scope of the jurisdiction to make such orders, it is quite different from the jurisdiction that is exercised retrospectively at the stage of costs assessment, and when the court is required to decide the amount of reasonable and proportionate costs. Costs estimates can also alert the judge responsible for case management to the need to take appropriate action to prevent disproportionate costs from being incurred.

[31]

We acknowledge the concerns about the danger of satellite litigation. It might be said that the guidance that we have sought to give will foster disputes. Did the paying party who alleges that he relied on the estimate in fact rely on it, and to what extent? Would the court in fact have made different case management decisions if it had been provided with a realistic costs estimate, and what effect would that have had on the litigation and the parties’ costs? What is the explanation for the difference between the costs estimate and the costs claimed at the assessment stage, and does the explanation satisfactorily account for the difference? These are all valid questions to ask. But these concerns do not justify setting at nought the important CPR provisions relating to the making of costs estimates. If costs estimates are not taken into account at the assessment stage, then they will be entirely nugatory. It should not be difficult for the court to determine whether, and if so how, the paying party has relied on the costs estimate given by the receiving party without conducting an elaborate and detailed investigation. Likewise, in most cases the court should be able without prolonged investigation to form a judgment as to whether, and if so how, the case would have been managed differently if a realistic costs estimate had been given.

[32]

If, applying the guidance given in this judgment, the court is satisfied that the costs claimed should be reduced having regard to the costs estimate, the question remains: by how much should the costs be reduced? This will always depend on the circumstances of the individual case. It is a matter for the judgment of the court to decide what reduction to make. Regard should be had to the costs estimate when considering whether the costs claimed were reasonably incurred and reasonable in amount. Moreover, where justice so requires, specific deductions can be made from the costs recoverable to reflect the impact that erroneous and uncorrected estimates have had on case management or on the conduct of the other party.

[33]

We consider that, contrary to what occurred in the present case, the costs judge should determine how, if at all, to reflect the costs estimate in the assessment before going on to decide whether, for reasons unrelated to the estimate, there are elements of the costs claimed which were unreasonably incurred or unreasonable in amount. This will avoid the danger of 'double jeopardy' referred to in the context of a discussion about proportionality by Lord Woolf CJ in Lownds v Home Office [2002] EWCA Civ 365 at [30], [2002] 4 All ER 775 at [30], [2002] 1 WLR 2450.

According to Mr Tribe’s statement dated 23^rd March 2006:

10.

I understand that my solicitor was reassured as a consequence of these estimates that the £100,000 limit for the cover I had purchased would be sufficient to cover my costs exposure. My solicitor quite obviously relied on these estimates. Given the amount of the estimates there was no need to seek ‘top up’ or additional premium [sic].

…

13.

I was shocked to learn that the estimates provided and relied on by my solicitor in giving advice to me have been grossly exceeded by as much as almost five times by the first and third defendants.

According to Miss Levison’s statement, dated 26^th January 2007:

6.

… I advised Doug to take out an After the Event insurance policy in case he should lose the case. The insurance was arranged through the Accident Line Protect Scheme and the policy was taken out at the same time as the CFA was signed up. The cover was for £100,000 which I considered would be adequate to cover the Claimant’s liability for his own disbursements and the Defendants’ costs should he lose or have to discontinue the claim.

…

10(c) It is my invariable practice to check estimates of costs to trial on Allocation Questionnaires served by Defendants. This is particularly important in Conditional Fee Agreement cases. The reason is that it is, of course, absolutely necessary to keep a close eye on costs to protect the Claimant’s position and make sure there is adequate insurance cover. I considered that on the basis of the costs estimates provided by the 2 firms of solicitors acting for the 3 Defendants, the After the Event insurance policy cover for £100,000 would be adequate to cover the Claimant’s liabilities. There was no need to seek top up cover on the basis of the information provided.

Although Mr Tribe did not give evidence before me, he did address me. I formed the very clear view that he was an honest, measured, careful and reasonable man. I have no doubt that had he been aware at the outset of these proceedings of the true magnitude of the claim for costs against him, he would have purchased additional insurance cover. At the outset, the expert evidence favoured his case and I have no reason to suppose that adequate cover could not have been purchased at relatively modest cost. Therefore, even ignoring the evidence of Miss Levison, I have no doubt that the Claimant did rely on the estimate of costs given by the First and Third Defendants in their Allocation Questionnaire.

Paragraph 6.6(2)(b)(ii) of the Costs Practice Direction imports a concept of “reasonable” reliance which was not suggested by the Court of Appeal in Leigh. It seems to me that while, following the guidance suggested by the Court of Appeal, it may not strictly be necessary for the paying party to establish that his reliance on the estimate was reasonable, unreasonable reliance on an estimate is unlikely to lead to the same result as reasonable reliance.

While I consider that the estimate in the Allocation Questionnaire was too low at the time that it was given, it was not so low that it was unreasonable for the Claimant and his solicitors to rely on it. It must I think be of some significance that the estimate was contained in a document which was signed by a solicitor in a respectable and respected firm. The figure of £50,000 had been “decided on” by Mr Barham, a partner at Beaumont & Son, who had overall responsibility for the case. (Footnote: ³) He would have been aware that the Claimant had purchased ATE insurance from the earlier Notice of Funding. He should have been aware of the importance of the estimate. Clearly it was intended that it be relied on.

Although the Allocation Questionnaire was served after a Defence in which liability was denied, the extent of the resources which the defendants were willing to commit to this action could not have been known. Further it is commonly believed that solicitors acting for insurers generally charge lower than the going market rate to reflect a relationship which provides work in bulk.

The First and Third Defendants’ explanation for the difference between the estimate and the sum now claimed for costs is set out in the statement of Mr Barham.

He identifies the following factors as leading to costs which were unanticipated at the time that the estimate was given:

It seems to me that, having regard to the issues identified in the statements of case, it should have been apparent when the estimate was given that the engineering evidence would be lengthy and complex. I accept that all of the other factors would have been unanticipated, although some of them (the identification of further witnesses, the need for further expert evidence and delays by the other side) are fairly commonplace in this sort of litigation.

But I cannot accept that these factors, collectively, can explain the difference between the estimate and the sum now claimed. Looking through the bill, no more than a few hundred pounds was spent attending on any witness. The costs consequences to these defendants of the death of Mr Philips and the logistical difficulties of arranging a meeting with Mr Darlington cannot have been anything other than modest. The cost of investigating Mr Tribe’s condition is claimed at £750 (£300 in attending the neurologist and £450 for the neurologist’s fee). While £2,042 is claimed for attending on the metallurgist and about £11,500 claimed for his fees, these figures cannot explain the difference and do appear to be somewhat high themselves.

The chasm is not bridged. In my judgment the First and Third Defendants have not given a satisfactory explanation for the difference between the estimate of £50,000 (including trial and dealing with quantum) and the sum now claimed of £244,509 (excluding trial and dealing with quantum).

I doubt that the case would have been managed very differently if a higher figure had been given at the outset or if the First and Third Defendants’ solicitors had volunteered to the Court a higher figure subsequently. There may have been scope for giving different directions about expert witnesses, but having regard to the potential value of the claim and the crucial importance of the expert evidence on liability, this would probably not have been a case where a direction for joint experts would have been appropriate.

Given my findings that the Claimant relied, and reasonably relied, on the low estimate given by the First and Third Defendants in their Allocation Questionnaire and that those defendants have not satisfactorily explained the difference between that estimate and the costs now claimed, should the claim for costs be limited to the estimate? The Court of Appeal stressed in Leigh that an estimate is not a “cap”. Rather the appropriate approach is that set out in paragraph 32 of the judgment of Dyson LJ:

If, applying the guidance given in this judgment, the court is satisfied that the costs claimed should be reduced having regard to the costs estimate, the question remains: by how much should the costs be reduced? This will always depend on the circumstances of the individual case. It is a matter for the judgment of the court to decide what reduction to make.

In my judgment this is an appropriate case to reduce the costs that may be recovered by the receiving party to take account of the paying party’s reliance on the estimate. As the estimate cannot be a cap, it seems to me that the appropriate starting position should be the costs which one would expect to see incurred in this case by these parties. I would have expected the First and Third Defendant’s reasonable costs of defending this claim to trial, including the assessment of damages, to have been no more than about £100,000 - £150,000. Allowance then has to be made for three competing factors:

Taking these factors into account it seems to me that a reasonable figure for defending the action to discontinuance, so not including the costs of trial and not including any costs of dealing with quantum, but including the additional costs that would reasonably have been incurred because of the deaths of Mr King and Mr Philips and the need for metallurgical evidence would have been £70,000. In my judgment, because of the low estimate that was given, the Claimant’s reliance on it and the absence of a satisfactory explanation for the difference, that is the most that the First and Third Defendants should be able to recover in respect of their costs.

For reasons which will be apparent from the above and need not be repeated, it seems to me that the costs claimed are disproportionate to the value of the action and to the issues in the action. I accept that this was a potentially high value claim – though not the highest by a long way. Quantum was not really explored – particularly not by the Defendants – but potentially the damages may have approached £500,000. As far as liability was concerned, this was a case which would succeed or fail according to the expert evidence. There were no complex legal issues.

Even if the amount now claimed for costs had included the costs of trial and of dealing with damages, the figure is so out of kilter with the bills that I see in comparable cases that the conclusion that these costs are disproportionate is unavoidable.

The following rates are claimed in the bill:

In my judgment it was reasonable for the First and Third Defendants to instruct specialist aviation solicitors. The Claimant instructed a Central London firm and the action was in the High Court in London. It seems to me that it was reasonable also for the Defendants to instruct a Central London firm, on the edge of the City, particularly if that would bring the necessary specialism. But this was not a “City” case. This was not “City” work. The Defendants should be able to recover Central London rates and anything more, in my judgment, would be unreasonable.

It seems to me that the partner’s initial rate of £280 is reasonable, but I do not understand the step up in January 2004. In my judgment the reasonable rate for 2004 should be £300 and for 2005 should be £320. The Grade C rates claimed are reasonable and I observe that most of the work was in fact done by Mr Baker.

The Costs Draftsman’s rate is high. This work could have been done out-of-house by one of the many independent draftsmen at an hourly rate of up to £120. While I am sure that there are many benefits to employing in-house draftsmen, I do not see why the Claimant should have to pay for them. The Costs Draftsman’s rate should be limited to £120.