Case No: B00AL164
Appeal M16X151
IN THE MANCHESTER COUNTY COURT
On appeal from DDJ Buckley
Date: 04/11/2016
Before :
HIS HONOUR JUDGE
SMITH
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Between :
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Mr Lee Thomas Demouilpied
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Claimant
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Stockport NHS Foundation Trust
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Defendant
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Case No: B03MA277
Appeal M16X154
IN THE MANCHESTER COUNTY COURT
On appeal from DJ Iyer
Date: 04/11/2016
Before :
HIS HONOUR JUDGE
SMITH
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Between :
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Ms Suzanne West
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Claimant
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Stockport NHS Foundation Trust
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Defendant
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Rupert Cohen (instructed by Forster
Dean) for the Appellants
Roger Mallalieu (instructed by Acumension
Limited) for the Respondent
Hearing dates: 3rd November 2016
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Approved Judgment
I direct that
pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of
this Judgment and that copies of this version as handed down may be treated as
authentic.
.............................
HIS HONOUR JUDGE
SMITH
His Honour Judge Smith :
1.
I am dealing with two appeals against decisions made by district judges,
both of which relate to block-rated after the event (“ATE”) insurance premiums.
The issue which I have to decide is whether the district judges erred in their
approach to their assessment of the ATE premiums applying the principles of
reasonableness and proportionality.
2.
I remind myself that an appeal court will allow an appeal where the
decision of the court was either wrong or was unjust because of a serious
procedural or other irregularity. Both of these appeals have been brought on
the basis that the decisions of the district judges were wrong. I have heard
submissions that the district judges erred in law, and that they erred in the
exercise of their discretion. If I find an error of law, then I may interfere
if such error results in the decision being wrong. In relation to the exercise
of discretion, I must be satisfied that the district judge has “exceeded the
generous ambit within which a reasonable disagreement is possible” (Per Lord
Fraser in G –v- G (Minors: Custody Appeal) [1985] 1 WLR 647 at 652), and
may only interfere if I am so satisfied.
3.
In his lengthy and detailed updated combined skeleton argument, Mr Cohen
on behalf of the Appellants suggested that “these cases offer the opportunity
for authoritative guidance on how reasonableness and proportionality should be
applied to block rated premiums” (paragraph 12 (d)). In the course of
submissions, I indicated that any guidance given by me would not be
authoritative, for obvious reasons. Whether it would be helpful remains to be
seen. Mr Cohen’s response was along the lines that this would depend upon which
party subsequently sought to rely upon it. Although this was clearly a
light-hearted comment, it does indicate the reality of ongoing conflict between
claimants and defendants and their respective insurers in relation to costs
issues, in the course of which (as has happened in these appeals)
non-authoritative rulings are trawled for comments which may assist one party
or the other. In the course of submissions, I was referred to numerous
authorities, the majority of the which are decisions of County Court judges or
costs judges. In a number of instances, both counsel referred me to different
passages in the same authority.
4.
I have no intention of quoting extensively from these non-authoritative
rulings, nor of seeking to produce a comprehensive review of them. Rather, I
will seek to deal succinctly with the various points argued before me, with
brief cross-references to the authorities referred to.
5.
In the course of this judgement, I will refer to page numbers in the
consolidated appeal bundle.
Legal and procedural background
6.
Significant changes were made in 2013 to the costs regime which applied
to personal injury claims, consequent upon the review of costs carried out by
Lord Justice Jackson. These had the effect of substantially replacing
conditional fee agreements and ATE insurance policies with a new system of
qualified one-way cost shifting. However, a specific exception was made in
relation to ATE policies covering the cost of medical reports addressing
liability and causation in clinical negligence cases. This was achieved by section
58C(2) of the Courts and Legal Services Act 1990 and Regulation 3 of the
Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No. 2)
Regulations 2013/739. The effect of these provisions is that successful claimants
may recover all or part of an ATE premium if the financial value of the claim
is more than £1000 and the policy insured against the risk of incurring a liability
to pay for expert reports relating to liability or causation in respect of
clinical negligence proceedings. The reference to part of a premium is to that
part of a premium which relates to such cover, where the policy also insures
against other risks.
7.
As with all other elements of recoverable costs, these premiums are
subject to the provisions of the Civil Procedure Rules, and in particular CPR
44.3 and 44.4 which provide that:
“44.3(1) Where the court is to assess the amount of costs
(whether by summary or detailed assessment) it will assess those costs –
(a) on the standard basis; or
(b) on the indemnity basis,
but the court will not in either case allow costs which have
been unreasonably incurred or are unreasonable in amount.
(2) Where the amount of costs is to be assessed on the
standard basis, the court will –
(a) only allow costs which are proportionate to the
matters in issue. Costs which are disproportionate in amount may be disallowed
or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether
costs were reasonably and proportionately incurred or were reasonable and
proportionate in amount in favour of the paying party.
(3)….
(4)….
(5) Costs incurred are proportionate if they bear a
reasonable relationship to –
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issue in the
proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the
paying party; and
(e) any wider factors involved in the proceedings, such
as reputation or public importance.”
44.4(1) The court will have regard to all the circumstances
in deciding whether costs were –
(a) if it is assessing costs on the standard basis –
(i) proportionately and reasonably incurred; or
(ii) proportionate and reasonable in amount…
(2)….
(3) the court will also have regard to –
(a) the conduct of all the parties, including in
particular –
(i) conduct before, as well as during, the
proceedings; and
(ii) the efforts made, if any, before and
during the proceedings in order to try to resolve the
dispute;
(b) the amount or value of any money or property
involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the
difficulty or novelty of the questions raised;
(e) the skill, effort, specialised knowledge and
responsibility involved;
(f) the time spent on the case;
(g) the place where and the circumstances in which work
or any part of it was done; and
(h) the receiving party’s last approved or agreed
budget.”
8.
The rules for the assessment of costs were also significantly altered in
2013. Most bills (including those in these cases) are now submitted to a
district judge for provisional assessment without an oral hearing. The
provisional assessment is carried out upon consideration of the bill of costs,
points of dispute and any reply to them. Any party may challenge any aspect of
the provisional assessment by requesting an oral hearing within 21 days of
receipt of the notice of provisional assessment. The request for oral hearing must
“identify the item or items in the court’s provisional assessment which are
sought to be reviewed at the hearing” (CPR 47.15 (8) (a)).
West
9.
Ms West instructed solicitors in October 2013 in respect of negligent
treatment at the Defendant’s hospital in May 2013. In December 2013 she took
out ATE insurance with ARAG for a premium of £5700 plus IPT, of which part (£4800)
was recoverable pursuant to the 2013 Regulations. Reports on liability and
causation were obtained from a Consultant Hand and Orthopaedic surgeon and a
Consultant Psychologist. The matter settled on 7th July 2015 for £10,000,
without the need to issue proceedings.
10.
A provisional assessment was carried out by District Judge Iyer on 10th
March 2016. The points of dispute included a challenge to proportionality (page
288) and to the ATE premium (page 296 and 298). Replies to those challenges are
at pages 305 and 317. The notice of provisional assessment (page 327) indicated
that the district judge had disallowed the ATE premium entirely on a basis
which was subsequently accepted by him to be erroneous. In relation to
proportionality, the district judge stated that “in so far as solicitor’s
profit costs (not including costs of drafting and checking bill) and counsel’s
costs (combined) as assessed above still exceed £10,000, they are reduced to
that sum.” (page 328, point 17).
11.
The Claimant challenged the provisional assessment and an oral hearing
took place on 20th June 2016. Following lengthy submissions, the district judge
gave a short judgement as follows (page 242):
“this is a claim which was never going to be very high in
value. Under the recovery of Costs Insurance Premiums in Clinical Negligence
Regulation (No. 2) 2013, the recoverability of insurance premium is limited to
the costs of medical reports. The part of the premium relating to the costs of
such things as doctors attending conferences with counsel or at trial cannot be
claimed. Therefore, I need to attempt to make an informed decision about what
the recoverable costs would be.
I consider that any case involving at most two experts, this
is in relatively small sums of money; that is something that I could do. It
would not be right or proper to demand complex or costly evidence about all of
that. This is a task quoted in the Black Horse case and I think I can do
it here.
Even if I had not seen any evidence about what the premiums
might be, I would have thought that the premium really should not have exceeded
£2500. I do have evidence here. There is a question about whether the evidence
indicates an alternative policy, but I think that given the information that
there is here, that the evidence is sufficient, and according to these, it does
rather look as if the claimant could have found insurance policies available to
cover a figure that was no more than what the likely expert report costs would
be, ranging from £2120-£2332.
My instinct would have been a figure of about £2500 and that
is the figure that I consider would have been a reasonable premium to have
paid.”
12.
The district judge made no specific reference in his judgement to
proportionality although this had been raised in the course of submissions (for
example at page 222 and page 226). Nor, it appears, was he asked to consider
the issue of the ATE premium in the light of his overall conclusion as to
proportionality at point 17 of the provisional assessment.
Demouilpied
13.
Mr Demouilpied instructed solicitors in March 2014 in respect of
negligent treatment at the Defendant’s hospital in November 2012. In April 2014
he took out ATE insurance with ARAG for a premium of £5700 plus IPT, of which part
(£4800) was recoverable pursuant to the 2013 Regulations. A report on “the
nature and extent of the condition…and prognosis” was obtained from a
Consultant in Orthopaedics and Trauma. The matter settled on 5th January 2015
for £4500 without the need for proceedings.
14.
A provisional assessment was carried out by Deputy District Judge Beard
on 10th December 2015. The points of dispute included a challenge to
proportionality (page 103) and to the ATE premium (pages 108 and 111). Replies
to those challenges appear in the same, consolidated document. In relation to
proportionality, the deputy district judge noted that he would exercise his
duty when considering the bill, and in relation to the premium he noted
“comparable premium approach adopted in satisfaction of achieving overriding
objective and proportionality. Defendants comparable premium of £1982.20
adopted. ATE was needed but claim resolved after issue. So reasonable to incur
ATE.” (page 155 and 158)
15.
The Claimant challenged the provisional assessment, and an oral hearing
took place on 26th April 2016 before Deputy District Judge Buckley. He reserved
judgement, and a lengthy judgement was produced on 11th May and
handed down on 14th June. Having reviewed the background to the
case, he determined that the premium was reasonably incurred and reasonable in
amount (paragraph 18, page 58) but was disproportionate “in the light of the
compensation targeted, and the limited amount of the risk to which the insurer
was exposed.” (Paragraph 29, page 64). He concluded that a proportionate sum
would be £650 (paragraph 33). It is not entirely clear how he arrived at that
figure. He determined that a reasonable estimate of the cost of an expert
report on breach of duty was £1100 and that the prospects of success must have
been thought to be at least 50/50. However, as I pointed out in the course of
argument, £650 is not half of £1100. It is not clear whether this is an
arithmetical error, a typographical error, or whether the Deputy District Judge
increased the figure of one half of £1100 to take account of other
considerations.
16.
The Deputy District Judge also explained his approach to the
proportionality assessment. In paragraph 20 (page 60) he envisaged a “Lowndes…
type 1st-stage decision on the proportionality of the total cost and
disbursements claimed. Only after such a decision can he proceed to the second
stage and say whether reasonably incurred or only necessarily incurred items
will be allowed. Then after the individual items in the bill have been allowed,
reduced or disallowed, he will proceed to a third stage, as required by the new
wording of the rule and impose (further) reductions if proportionality demands
that.” He did not proceed to the third stage because neither party had
requested a review of the issue of proportionality in general (paragraph 24),
but rather applied that test only to the individual item in question, namely
the ATE premium (paragraph 28).
Proportionality
17.
The first issue raised by Mr Cohen is whether the court can still award
disproportionate costs notwithstanding the apparently clear words of CPR
44.3(2) that “the court will only allow costs which are proportionate to the
matters in issue.” He submits that the court still has a discretion to award
costs which are disproportionate because the rule goes on to say that “costs
which are disproportionate in amount may be disallowed or reduced even if they
were reasonably or necessarily incurred”. He submits that the use of the word
“may” rather than “shall” clearly indicates that the court has a discretion in
this respect. He submits that there is no tension between these two parts of
the rule because costs which have been necessarily incurred can be treated as
being proportionate even if in fact they were not proportionate (this being
Lord Neuburger’s analysis of the decision in Lownds –v- Home Office in Lawrence
–v- Fen Tigers Ltd (No 3) [2015] 1 WLR , paragraph 36.)
18.
The current wording of the Rule was introduced in 2013 as part of the
amendment to the rules relating to costs to give effect to the recommendations
of Sir Rupert Jackson. In chapter 5 of his report, Sir Rupert considered the
issue of proportionality, recommended that the decision in Lownds as to necessity
be reversed, and recommended that:
“The rules should also provide that the fact that costs were
necessarily incurred does not make them proportionate. This should be stated
explicitly, if the Rule Committee sees fit to reverse the effect of Lownds.”
As the current wording of the Rule appears to
have been introduced to give effect to this recommendation, it would be very
surprising if Mr Cohen’s interpretation of the Rule is correct.
19.
It is, of course, possible that the Rules Committee decided not fully to
implement the recommendation. It is also possible that they attempted to
implement it, but that their attempt to do so failed. Alternatively, it may be
that this is not the only possible interpretation of the rule. For example, the
intention of the rule may be to permit either disallowance or reduction, but
not allowance, of costs necessarily incurred; in other words “costs which are
disproportionate in amount may (either) be disallowed or (may be)
reduced” (words in italics added by me). However, I do not consider that I need
to make a definitive finding on this issue because there has been no suggestion
that it was necessary for either of the appellants to obtain this particular
policy.
20.
The second issue raised by Mr Cohen is whether the court, when
determining proportionality, can take account of factors which are not specific
to the case. It is common ground that CPR 44.3(5) sets out factors to be
considered which are specific to the case in question. However, he submits that
CPR 44.4 allows the court to go further than this, by referring to “all the
circumstances”. This is relevant because if the court is not restricted to
factors specific to the case then it is entitled to consider wider issues
relating to the block rating of premiums.
21.
In my judgement, CPR 44.4 does not have the effect suggested by Mr
Cohen. I consider that the words “all the circumstances” must be considered to
refer to the circumstances of the case. This reading would mean that there is
no tension between 44.4 and 44.3 (5), and is also borne out by the provisions
of CPR 44.4(2) and (3) which detail specific factors which the court will have
regard to, all of which are clearly specific to the case in question.
22.
Accordingly, in my judgement the court is not entitled when considering
proportionality to take into consideration wider issues relating to the ATE
market.
23.
The third issue raised by Mr Cohen is that of how proportionality is
determined. Put simply, must this be done on a global basis by looking at the
totality of the costs or can it be done on an individual basis by determining
that an individual item is disproportionate even though the total figure for
costs is proportionate? Once again, I was referred to Sir Rupert Jackson’s
report, at paragraph 5.12:
“Disproportionate costs should be disallowed in an assessment
of costs on the standard basis. If a judge assessing costs concludes that the
total figure, alternatively some element within that total figure, was
disproportionate, the judge should say so. It then follows from the provisions
of CPR 44.4(3) that the disproportionate element of costs should be disallowed
in any assessment on the standard basis. In my view, that disproportionate
element of the costs cannot be saved, even if the individual items within
it were both reasonable and necessary.”
The passages which I have
noted in italics suggest that a finding that costs are disproportionate is not
restricted to the global costs figure.
24.
I was referred by both counsel to a number of authorities, none of them
binding on this court, in which judges have approached the exercise in
different ways. In particular, I was referred to:
i)
BNM –v- MGM [2016] EWHC B13 (Costs), a decision of Master
Gordon-Saker, at paragraphs 13, 14, 23, 33-35, 40-47 and 53;
ii)
May –v- Wavell Group [2016] EWHC B16 (Costs), a decision of
Master Rowley, at paragraphs 43 and 46;
iii)
Hobbs –v- Guy’s and St Thomas NHS Foundation Trust [2015] EWHC B20 (Costs), a decision of Master O’Hare, at paragraphs 25, 33, 35-36 and
40-41;
iv)
Martin –v- Queen Victoria Hospital NHS Foundation Trust (2016), a
decision of Her Honour Judge Belcher, at paragraphs 36 to 38.
25.
I do not consider it helpful to analyse these decisions. In my judgment,
the use of the word “costs” in the rules can refer either to the global figure
or to specific items, depending upon the context in which it is used. Rule
44.3(1) states that:
“Where the court is to assess the amount of costs…..it will
assess those costs –
(a)
On the standard basis; or
(b)
On the indemnity basis,
But the court
will not in either case allow costs which have been unreasonably incurred or
are unreasonable in amount.”
In the first line, “costs”
would appear to refer to the totality of the costs which the court is
assessing, but when used later in the Rule, the same word “costs” could refer
either to the total figure or to individual items, as it is quite clear that
the court may reduce or disallow individual items on the basis that they are
unreasonably incurred or unreasonable in amount.
26.
I see no reason why the test of proportionality should be incapable of
being applied in the same way as the test of reasonableness. Although in
practise there may be very few cases where an individual item of costs is
disproportionate even though the total costs figure remains proportionate (and
even though that item was reasonably incurred and reasonable in amount), I can
so no reason why the court does not have the power to reduce or disallow such
item. Accordingly, I reach the same conclusion on this issue as did HHJ Belcher
in the Martin decision.
Reasonableness
27.
No issue arises as to the interpretation of the Rules concerning
reasonableness of costs. The issue in this respect is, in the specific context
of ATE premiums, the nature of the burden upon a paying party seeking to raise
the issue. Put simply, what must a paying party do to raise a “doubt” (for the
purposes of Rule 44.3(2)(b)) so that the burden passes back to the receiving
party to show that the item of costs is reasonable?
28.
This issue has been addressed in general terms by the Court of Appeal,
in the case of Rogers –v- Merthyr Tydfil County Borough Council
[2006] EWCA Civ 1134. At paragraph 117, Brooke LJ stated that:
“…District Judges and costs judges do not, as Lord Hoffman
observed in Callery –v- Gray (Nos 1 and 2) [2002] 1 WLR 2000, para 44,
have the expertise to judge the reasonableness of a premium except in very
broad brush terms, and the viability of the ATE market will be imperilled if
they regard themselves (without the assistance of expert evidence) as better
qualified than the underwriter to rate the financial risks the insurer faces.”
This suggests that a judge
dealing with a challenge to an ATE premium will require expert evidence before
being in a position to decide the issue of reasonableness.
29.
In Kris Motor Spares –v- Fox Williams LLP [2009] EWHC 2813, at
para 44 Simon J held that “I have concluded that in a case where the issue is
raised as to the size of the premium there is an evidential burden on the
paying party to advance at least some material in support of the contention
that the premium is unreasonable.” He went on to consider the decision in Rogers, and then said that “in the present case, no evidence was deployed by KMS [paying
party] which might have assisted the Master”. He upheld the decision of the
Master to allow the ATE premium in full.
30.
In Kelly & Anor –v- Black Horse Ltd [2013] EWHC B17 (Costs),
Senior Costs Judge Hurst, having referred to Brooke LJ’s comments in Rogers,
went on to allow only 25% of the ATE premium. There was no specific evidence
before him as to the availability of alternative cover, and he appears to have
proceeded on the “broad brush” basis referred to by Brooke LJ. However,
although he concluded that “it is reasonable to expect the defendant to pay 25%
of the premium” (para 28), he had previously found that “there is no doubt that
the ATE premium sought in this case is wholly disproportionate” (para 26). It
therefore seems to me that he was using the word “reasonable” in a loose sense.
31.
The decision in Kelly was referred to by Foskett J in Surrey
–v- Barnet and Chase Farm Hospitals Foundation NHS Trust [2016] EWHC 1598.
He said that:
“…it must be recalled that there is now some 10 years of
experience gained by Costs Judges since Rogers. Neither Callery –v-
Gray nor Rogers expressly holds that an adjustment of a premium by
Costs Judges should not be made on a broad brush basis, but each, in effect,
urges caution in so doing.” (para 116)
“There are two reported instances where the broad brush has
been applied in this context…..Kelly –v- Black Horse Ltd…I am
particularly influenced by the fact that Master Hurst, whose experience in this
field is unrivalled, should have felt entitled to intervene in this way.” (para
117)
“Plainly, the application of any broad brush must not be a
capricious exercise, but the experience gained by Costs Judges over the years
must, if they are to retain the ability to engage in a robust analysis of
competing arguments at costs assessment hearings, be permitted to enter the
arena. It follows that, in my judgment, each of the costs judges would have
been entitled to intervene by reducing the amounts recovered in respect of the
ATE premium.” (para 118)
32.
Although Foskett J went on to refer to Master Rowley (one of the costs judges
whose decisions he was upholding) having considered “that cover for £500,000 in
the circumstances was disproportionate”, an analysis of the decisions of the
two costs judges seems to me to suggest that the ATE premiums had been reduced
by them on the basis that they were unreasonable rather than disproportionate
(see paragraph 104 of Master Rowley’s decision, quoted at paragraph 113, and
paragraph 84 of Deputy Master Campbell’s decision, quoted at paragraph 114,
both of which refer specifically to reasonableness, and indeed to Rogers).
33.
Shortly after the decision in Surrey, Langstaff J expressed
reservations about some of the comments of Foskett J, in Pollard –v-
University Hospitals of North Midlands NHS Trust (7/7/16). At paragraph 45
he said:
“If the broad brush assessment relates to the assessment of
the quantum of the premium, having the evidential material to begin such an
assessment, I would entirely agree and regard the principle as not being in the
least exceptional. If it is, as it could be read to suggest, that a judge is
simply entitled to look at the premium, to feel instinctively that it is too
high and therefore to take a broad brush approach to reducing it, then I would,
with respect, disagree.”
34.
The facts of Nokes –v- Heart of England Foundation NHS Trust
[2015] EWHC B6 (Costs) are strikingly similar to those with which I am dealing
in these appeals, and many of the submissions made to me were also made in Nokes.
Master Leonard reached the following conclusions in relation to the
reasonableness of the block-rated ATE premium:
i)
Applying Rogers, it remains inappropriate for a Costs Judge to
substitute his or her judgment for that of an underwriter (para 109);
ii)
It would probably require expert underwriting evidence to determine that
a block-rated premium is, as such, wrong or unreasonable (para 104);
iii)
It is inappropriate to entertain broad comparisons of two entirely
different types of policy, encompassing different risks, in order to come to a
wholly uninformed conclusion that one of them should be less expensive than it
is (para 117);
iv)
In Kelly, the court was dealing with an individually assessed premium,
and was well-equipped to deal with the assessment of risk which was a factor in
setting the premium (para 132);
v)
The evidence put forward by the paying party of a comparable LAMP policy
was of no assistance as “there is no evidence as to how the …premium was
calculated or whether it varies from case to case.” (para 126).
35.
On the basis of these authorities, Mr Cohen submitted that the
Respondents have failed to advance any material supporting the contention that
the premiums were unreasonable (Rogers). As they are block-rated
policies, this would probably require expert evidence (Nokes). The
evidence provided of LAMP policies was insufficient to raise the issue of
unreasonableness for the same reasons as it was insufficient in Nokes. Kelly
related to an individually rated premium, and so is of little assistance.
36.
In response, Mr Mallalieu submitted that the comparable evidence
submitted to the court in Nokes was rejected by the Master on the facts
of the case, which were significantly different to the facts in the cases I am
dealing with (that claim involved 4 medical experts and settled for £40,000).
Therefore LAMP policies are not unsuitable as comparators per se. He drew a
distinction between cases where a court is asked to deconstruct a policy
premium, where expert evidence would be required, and cases where it is
suggested that alternative policies were available. In the second of these
categories, the production of comparable alternative policies would be
sufficient to raise a doubt as to the reasonableness of the ATE premium.
37.
In my judgment, the following principles can be clearly discerned from
the authorities:
i)
There is an evidential burden upon the paying party to advance “at least
some material” to establish that the premium is unreasonable (Kris).
ii)
A costs judge is not entitled, in the absence of such material, to reach
a decision “instinctively” that a premium is unreasonable (Pollard).
iii)
If such material is provided, a costs judge may then adopt a broad brush
approach and rely upon their experience in so doing (Surrey, Pollard).
iv)
Expert underwriting evidence will usually be required, particularly in
cases where the premium for a block-rated policy is being challenged (Rogers,
Nokes).
v)
However, a costs judge is able to intervene without expert evidence if
the challenge is to an individually rated premium based upon the underwriter’s
assessment of the risk, as he or she is “well-equipped” to do this (Nokes).
vi)
Accordingly, the nature of the material required to satisfy the
evidential burden, and the nature of the task carried out by the costs judge
will both vary depending upon the ATE policy being challenged and the precise
nature of the challenge.
Application of principles – West
38.
Although Mr Mallelieu took me to a number of passages in the record of
the hearing before District Judge Iyer which referred to proportionality, the
District Judge did not mention proportionality in his judgment and there is no
basis upon which I can conclude that he was considering proportionality when he
reached his decision. In my judgment, he reached his decision solely on the
basis that the premium was unreasonable.
39.
Accordingly, insofar as the judgment was based on an “instinctive” view
that the premium was unreasonable, the District Judge was not entitled to
proceed in that manner.
40.
However, this was not the only basis upon which the District Judge
reached his decision. He expressly based his decision on the evidence before
him (of alternative LAMP policies) and said “there is a question about whether
the evidence indicates an alternative policy, but I think that given the
information that is here, that the evidence is sufficient, and according to
these, it does rather look as if the claimant could have found insurance
policies available…”
41.
This needs to be considered against the background of the points of
dispute. These (at page 298) advanced 3 separate challenges. The first was
“whether the level of premium claimed breaches Regulation 3(2)”, the second was
that the premium was disproportionate and the third was that “ATE insurance
cover could have been obtained from Lamp Services….for a fraction of the
premium claimed”. A number of Lamp policy schedules were attached (these are at
pages 324-326). The replies to the points of dispute (at page 317) dealt only
with the first of these 3 challenges.
42.
In the hearing itself, counsel for the Claimant, Mr McGee, contended
that the Lamp documents did not discharge the evidential burden upon the
Defendant (page 228). In argument before me, Mr Cohen went further and
submitted that the documents produced did not indicate whether they were
individual premiums or block-rated; did not give any indication of the risk calculation
if they were individually rated; did not indicate the stage of proceedings at
which the policies had been taken out, and did not show how the premiums had
been calculated.
43.
In my judgment, on the facts of this case and given the nature of the
challenge to the premium, the material provided by the Defendant was sufficient
to satisfy the evidential burden. This was not a case where expert evidence was
required because the challenge was not to the calculation of the premium but
was based on the potential availability of alternative cover (and so was
different to the challenge in Nokes). The Claimant did not rely upon any
material in response (for example, there was no explanation of whether
alternative cover had been considered). The District Judge was therefore
entitled, as a matter of law, to rely upon the evidence before him. At that
stage, he was also entitled to rely upon his experience, which in fact led him
to award a higher figure than that given in the Lamp documents. He was entitled
to do so in the exercise of his discretion to allow a reasonable figure, having
resolved the doubt as to reasonableness in favour of the paying party, as he
was required to do by CPR44.3(2)(b). I therefore dismiss the appeal.
Application of principles – Demouilpied
44.
Deputy District Judge Buckley reached his decision on the basis of
proportionality, having concluded that the premium was reasonably incurred and
reasonable in amount.
45.
It follows from my conclusions about proportionality that the deputy
district judge was entitled as a matter of law to consider the proportionality
of the ATE premium in isolation. Further, he was entitled to take account of
the “compensation targeted” pursuant to CPR44.5(a) (“the sums in issue in the
proceedings”). He also referred to “the limited amount of risk to which the
insurer was exposed”. That was clearly a reference to the number of, and likely
cost of, the reports which were to be covered by the ATE policy. In my
judgement, the deputy district judge was entitled to take account of this, both
because it was an expression of the (lack of) complexity of the case
(CPR44.5(c)) and as part of “all the circumstances” (CPR44.4(1)). In the
exercise of his discretion, he was entitled to decide that the premium was
disproportionate.
46.
Having reached this conclusion, it is surprising that the deputy
district judge sought in effect to calculate a premium. This was both inappropriate
(as his finding was that the premium was disproportionate, not unreasonable)
and potentially impermissible (pursuant to Rogers), although
insofar as he assessed risk, he was entitled to do so (pursuant to Nokes
and Kelly, to which he made express reference earlier in his judgment).
Moreover, as I have already indicated, it is unclear how he arrived at the
figure of £650. However, it is clear that he was still considering the question
of proportionality, and he expressly concluded that the figure of £650 was
proportionate. I am satisfied that it was within the generous ambit of his
discretion to reach that conclusion. The fact that he used an inappropriate
calculation to support that figure does not mean that his conclusion was wrong.
Accordingly the appeal is dismissed.
47.
I will deal with the costs of this appeal at the hearing when this
judgment is handed down. The parties will not be surprised to know that I will
be concerned to ensure that any costs awarded are both reasonable and
proportionate.
