Glen Wilson v MIB (Derby CC)
DJ Butler held that the claimant’s solicitors were unreasonable in issuing proceedings for all heads of damage, including the injury element which the defendant offered to settle and the claimant accepted.
He accepted our argument that as the injury element of the claim was ultimately settled for the same amount that was offered pre-issue, costs relating to this element should be limited to those under the PCR and costs relating to the other heads of damage should be small claim fixed costs only as if the claimant had issued for these elements only, the claim would have been allocated to the small claims track.
This claim arose from an RTA which occurred on 20 April 2006. It included claims for personal injury, hire charges, repair, storage, and recovery charges. All aspects of the claim were in dispute bar the claims for injury and hire charges that were settled directly with the insurers in September 2007.
Upon disclosure of medical evidence the defendant made an offer of £2,200.00 in respect of personal injury. In May 2008 the claimant confirmed that this sum was acceptable on the condition that his hire charges and miscellaneous expenses were also paid in full. These were £2,058.60 for hire, and incidental expenses of £75.00.
The MIB were not in a position to agree the hire charges as they required further information. The claimant’s solicitors refused to deal with the claim on a piecemeal basis and said that if the credit hire charges remained disputed, they will issue proceedings for the whole outstanding claim not just the disputed hire bill. Subsequently, proceedings were issued and Judgment was entered for the claimant, and the matter was listed for disposal.
In February 2010 the defendant offered to settle general damages in the sum of £2,200.00 and the hire charges in the sum of £643.00. The defendant argued that predictive costs were payable as they had not increased their offer in respect of general damages. The claimant’s position was that the offer of £2,200.00 was only contingent upon the hire charges being settled in full, and as they had been disputed the offer had never been accepted. The defendant refused to consent to an order for costs to be assessed on the standard basis and therefore the parties proceeded to the disposal hearing in order to establish the entitlement to costs.
At the hearing DJ Douce found that there had been no concluded agreement in relation to general damages pre-issue. Accordingly, he made an order for costs to be assessed on the standard basis, but also provided leeway for the defendant to refer to the claimant’s conduct at Detailed Assessment.
At the assessment hearing we argued that the claimant should be restricted to PCR in respect of the personal injury claim, and to small claims fixed costs in respect of the hire claim as if it had been issued for hire charges only it would have fallen within the small claims track. The claimant argued that it had already been established that there was no concluded agreement, and therefore they were perfectly entitled to issue proceedings in respect of the outstanding amount.
The bill totalled £23,978.04. We had offered £4,132.12.
DJ Butler heard full submissions in relation to the preliminary point and had read the relevant papers in advance of the hearing. He gave judgment as follows:-
“The claim for costs includes a preliminary issue which is crucial to today. The defendant has raised the issue in the points of dispute. The RTA claim included a number of elements – repairs, storage, hire and personal injury. It appears that the claim for repairs and storage were paid prior to proceedings being issued. Disclosure took place culminating in two matters being outstanding – personal injury and hire. The hire claim was set out in the sum of £2058.60. The defendant offered £2,200 in respect of general damages. The claimant’s position was that that sum was acceptable but he was not prepared to deal with it on a piecemeal basis. The cheque was returned. It is a fact that there was no concluded agreement. The reason was that the claimant refused to deal on a piecemeal basis. Special damages were later agreed in the sum of £643.00, on the basis that the defendant had indicated that 14 days hire was appropriate. This was accepted by the claimant.
The defendant’s case is that the predictable costs regime should apply. I have considered O’Beirne but that doesn’t particularly assist me. Was it reasonable for the claimant to insist that they should pursue this claim on a total basis? The defendant says the claimant should not be entitled to anything more than fixed costs. Mr Taylor says it was reasonable to link both parts of the claim together in the absence of a Part 36 offer.
It’s my view that there was no reason whatsoever why the claimant didn’t hive off elements of the claim. When it is clear that £2,200 was acceptable, why should they continue? This should have been resolved prior to litigation or issued only for the hire charges. It is clear that the claim for hire charges did require full investigation in order to result in settlement at a much lower amount. It was wholly disproportionate for the claimant to insist on linking these two claims together. Therefore, I do find that the conduct of the claimant was unreasonable.”
Accordingly, DJ butler restricted the claimant’s costs to predictive costs for the injury claim and small claims fixed costs for the hire element, in line with our offer. The claimant’s bill was reduced from £23,978.04 to £4,132.12, and the claimant was ordered to pay our costs in the sum of £2,333.64.
Leave to appeal was sought and was refused.
