Wilson v Clyne Farm Centre

I come now to deal with an issue which arises in relation to the costs in this case. It is necessary to just give a little bit of background about my findings.

The claimant sustained injury when he landed at the bottom of a fireman’s pole in a sitting position and suffered consequent injury to his back. The fireman’s pole was part of a cross-country assault course, which was operated by the defendant. The primary submission made by the claimant was that there was inadequate instruction given in the way to negotiate the fireman’s pole. There were a range of other allegations made relating to a failure to demonstrate, failure to offer and draw the claimant’s attention to an alternative means of descent and also, a failure properly to instruct the claimant and to warn him of the fact that the pole might be wet and slippery. I found that there had been a failure properly to instruct the claimant in a safe way to negotiate the pole and that consequently there had been a breach of duty and the defendant was liable to him.

Another allegation made from the outset, although amended slightly in the course of the case, was a failure on the part of the defendant to provide proper impact attenuation at the base of the fireman’s pole. What was said was that there was an inadequate depth of attenuating material (i.e. woodchip, bark or material of that nature) as a consequence of which the area around the base of the pole was compacted and offered less of a forgiving landing than would otherwise have been the case. That was said to have been a causative factor in the claimant’s injury.

An order was sought and obtained from the Master that experts should provide reports and give oral evidence on the topic of impact attenuation. They gave evidence at the trial. They referred to a number of British and European Standards in support of their opposing views and I have inspected those documents and dealt with that evidence fully in my judgment.

In the event I found that the defendant was in breach of duty in providing inadequate impact attenuation at the base of the fireman’s pole. However, I also found that the claimant had failed to prove to the required standard that his injury would have been less severe or would have been avoided if adequate impact attenuating material had been in place. I had no medical or technical assistance on that point and in the circumstances I found that the claimant had failed to establish the necessary causative link between his injury and the defendant’s breach of his duty to provide adequate impact attenuation.

The starting point for the award of costs in this case is Part 36 of the CPR, this being a case in which the claimant had made a Part 36 offer to the defendant to settle the claim. In the event the damages which I awarded exceeded, albeit not by much, the amount of that offer. The claimant thus obtained a more advantageous outcome than that contained in his offer and the provisions of CPR 36.14(1)(b) applied. It is common ground that the claimant is therefore entitled to the costs of the action up to the date of the offer on the standard basis and thereafter to judgment on an indemnity basis.

However, the defendant contends that I should make a reduction in the costs awarded to the claimant on account of the fact that the claimant failed to prove causation in respect of the allegation of impact attenuation.

Before I consider the parties’ submissions in relation to that issue I should refer to CPR 44.3(2), which provides that, if the Court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but provides also that the Court may make a different order. CPR 44.3.(4) provides that, in deciding what order if any to make about costs the Court must have regard to all the circumstances, including -- and I mention only those circumstances relevant for these purposes -- the conduct of all the parties and whether a party has succeeded on part of his case even if he has not been wholly successful. CPR 44.3(5), which I do not need to deal with in detail refers to some of the factors to be considered in relation to the conduct of the parties.

What the defendant invites me to do is to make an order which takes into account the fact that the claimant has failed and the defendant has succeeded in relation to the issue of impact attenuation. For the defendant it is argued that this was a discrete issue. It was the only issue in the case which involved experts who were instructed to deal purely with impact attenuation. The defendant says that the issue was always doomed to failure, because of the lack of evidence on causation. It is said that the claimant failed to address that question despite the fact that, in the Defence, it was made clear that the defendant did not accept the causative relevance of the breach of the code which had been alleged in connection with the failure to provide adequate impact attenuation.

The defendant submits that the preparation and trial of this issue involved a significant amount of costs, in particular the costs of instructing the experts and their attendance at trial and also a significant amount of time in that there was at least one hearing before the Master which related solely to the expert evidence to be called and also there was time spent at the trial dealing with the issue.

The defendant invites me therefore to make an issue based order by which I mean an order that the defendant should not be required to pay the claimant’s costs in relation to the issue of impact attenuation. Such an order would, of course, involve the taxing Master or costs judge distinguishing at detailed assessment the costs expended on this issue and disallowing them. Such orders are discouraged by the CPR, because of the complexities, time and additional costs, which can result from the making of them.

It is contended however, that in this case the process would be relatively easy and that it would be a more accurate way of determining the costs of this part of the case than would be the more favoured approach of reducing the claimant’s costs by a percentage. Pressed on what percentage reduction would be appropriate if I were to deal with matters in that way, counsel for the defendant suggested a percentage of 15 to 20 per cent, but emphasised that this would be a rough and ready approach to the problem.

For the claimant it is submitted that this is not a case where the usual order envisaged in CPR 44.3(2) should be displaced. There has been no dishonesty, impropriety, exaggeration or non-compliance by the claimant. What is said is that the lack of adequate impact attenuation was just one allegation contained in the Particulars of Claim in respect of which the claimant ultimately failed. It is pointed out that he did not fail on the basis of breach of duty, but only on the legal issue of whether the breach gave rise to any damage. It is submitted that in any event the experts who were instructed dealt solely with the issue of breach of duty upon which the claimant succeeded and that causation was purely a matter of legal submission and involved no or negligible additional costs.

The claimant has drawn my attention to a number of relevant authorities, in particular the case of Fox v. Foundation Piling Limited [2011] EWCA Civ 790 in which Jackson LJ made a number of observations about the practice of making orders for issue based costs. Counsel, Mr Weddell, refers in particular to paragraph 47 of Jackson LJ’s judgment, emphasising that the starting point is that the successful party should recover its costs from the other side, and also paragraph 48:

“In a personal injury action the fact that the claimant has won on some issues and lost on other issues along the way is not normally a reason for depriving the claimant of part of his costs: see Goodwin v Bennett UK Limited[2008] EWCA Civ 1658. For example, the claimant may succeed on some of the pleaded particulars of negligence, but not on others. Indeed the fact that the claimant has deliberately exaggerated his claim may in certain instances not be a good reason for depriving him of part of his costs: see Morgan v UPS. A defendant who has obtained video surveillance evidence is perfectly well able to protect his position on costs by making a modest offer under Part 36.”

He went on at paragraph 49 to say:

“Nevertheless in other cases (as stated above) the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In Widlake the facts were so extreme that the successful party was ordered to bear all of its own costs...”

Mr Weddell has referred me also to cases such as Goodwin, which was cited in that passage and also Huck v. Robson [2003] 1WLR 1340 and Gibbon v. Manchester City Council [2010] 1WLR 2081. Mr Weddell also relies on the defendant’s conduct in relation to alternate dispute resolution (ADR). In his skeleton argument he draws attention to the fact that in November 2011 Master Fontaine directed that the parties should consider whether the case was capable of ADR and that, if a party did not consider that ADR was suitable, that party should be prepared to justify the decision at the conclusion of the trial. Indeed, the Master ordered that the party considering the case to be unsuitable for ADR should file with the Court not less than 28 days before the commencement of the trial a witness statement, giving the reasons upon which it relied for saying that the case was unsuitable.

What happened thereafter was that the claimant’s solicitors wrote to the defendant’s solicitors saying that the claimant was willing to agree to ADR and asking for confirmation of the defendant’s position. That letter was written within the date specified by Master Fontaine in her directions. That letter went unanswered for a period of over two months with the claimant sending chasing letters on a fairly regular basis. The defendant then indicated in September 2012 that it struggled to see what purpose would be achieved by ADR and the claimant’s solicitors responded by indicating that they were willing to seek some compromise of the case. The defendant did not respond to that letter and there was no further correspondence. No witness statement was filed in response to the order of the Court. The claimant submits that the defendant’s conduct in failing to respond positively to the suggestion of ADR should be taken into account when considering whether any adjustment should be made to the costs in this case.

The issue of impact attenuation was a discrete matter and was differentiated from the other allegations in the case by the fact that it required the involvement of experts. It does not seem to me to be appropriate or realistic to look at the allegation of impact attenuation by dividing it into issues of breach of duty and of causation. The fact is that the allegation failed on the issue of causation and failed because, as I found, there was no medical or technical evidence in order to prove the causal link. Whilst it does not appear that prior to the beginning of the trial the defendant had highlighted the absence of such expert evidence as an issue, nevertheless it was referred to in the Defence and in any event it is not, of course, for the defendant to seek to plug holes in the claimant’s case.

It seems to me therefore, that in the circumstances of this case it would be right for me to depart to some extent from the usual rule that costs follow the event. Having said that, I must decide how that is to be done. I am not attracted by the defendant’s submission that it should be done by way of requiring the costs judge to separate out all those costs relating to the issue of impact attenuation. It seems to me that such a course is likely to involve an element of complexity and undoubtedly would add to the costs. It seems to me that I should instead do my best to make a percentage reduction in the costs payable to the claimant.

When asked what an appropriate reduction would be, the Claimant’s counsel suggested a figure of two and a half to three per cent based on the costs of the expert in relation to the totality of the claimant’s costs bill. I have taken that assessment into account as well as making my own (necessarily somewhat rough and ready) assessment of the costs involved in pursuing this issue, I do also take into account to some small extent the defendant’s conduct in relation to ADR. The defendant failed to act in a reasonable manner in relation to ADR. It ignored correspondence and even more importantly, did not comply with an order of the Court to provide a witness statement. It is unacceptable for a party to flout a court order in that way. I appreciate that ADR may not have been successful, but it does not appear to me there was any real consideration on the defendant’s part about whether and if so how it might assist. So I take that matter into account, as I said, to a fairly small degree, but as a matter affecting my judgment.

Doing the best I can it seems to me that the reasonable, fair and just award would be to make an order that the claimant should receive 95 per cent of his costs.