Oliver Hadley v Walsall MBC and 3 others (Worcester CC)

This was an accident at work claim, against four defendants.  The claimant presented a bill totalling £69,323.20 inclusive of 100% success fee.  We were instructed to act for the third defendant.

At Detailed Assessment we argued that fixed success fee of 25% should apply to this case, and that the ATE premium should be reduced.

DJ MacKenzie accepted our submissions, reduced the ATE premium and the success fee, eventually reducing the claimant’s costs by two thirds, assessing them at £23,572.67.

This was an employers’ liability claim.  The claimant, an electrician, had been working on-site at a school owned by the first defendant.  The first defendant had instructed the second defendant to carry out work at the school.  The second defendant had subcontracted to the third defendant for whom HF was acting.  The third defendant had subcontracted the work to the fourth defendant who was the claimant’s employer.

None of the defendants accepted responsibility for the claimant’s accident and therefore proceedings were issued against them all, including the fourth defendant who promptly went into administration.  Proceedings against the fourth defendant were not pursued.

The matter eventually settled after it had entered the trial window but before it was listed for trial on the basis that the second and third defendants will pay the claimant’s costs, together with the costs of the first defendant.  The damages settlement, net of a reduction of 25% for contributory negligence was in the sum of £10,000.00.

In the run up to the intended trial window, the claimant’s solicitors issued an application saying that their client’s loss of earnings might actually be in the region of £500,000.  The claimant had not pursued the application however, and accepted the £10,000.00 offer.

The Claimant then presented a Bill of Costs, inclusive of 100% success fee, totalling £69,323.20.

At Detailed Assessment the parties discussed the success fee claimed, outside the court room.  Our Points of Dispute argued that the success fee was fixed at 25% as this was an accident at work even though to come within the fixed success fee rules, the dispute must arise between employer and employee, and here the case against the employer was never pursued.

The reply to our Points of Dispute stated “noted” and the counter offer seemed to indicate that the claimant considered themselves at risk.  The claimant’s representative raised the fact that the claimant was not employed by any of the three defendants, and we said that if the success fee was not fixed then she would actually get nothing because there was no statement of reasons for setting the % increase.  The claimant’s representative conceded to the 25% success fee.  When we confirmed the agreement to DJ MacKenzie, he seemed to indicate that this was clearly a 25% case.

At court we raised the issue of the abandoned specials claim, arguing that any costs in relation to it should not be recoverable.  The claimant’s representative argued that they had to make enquiries once their client provided the information, but she was unable to run this argument without either blaming the claimant or his solicitors for being slow and for not getting the information sorted out in the first place.

DJ MacKenzie agreed with uss and disallowed funding costs relating to the CFA, but he did allow the same, in respect of insurance.

Please note that this case precedes Motto v Trafigura.

In respect of charging rates, he allowed Grade B rate.  Most of the attendance and communication time ended up being split between the parties.  Substantial reductions were made to attendances on the claimant- a total of 14 hours was reduced to a total of 7 hours.  Most of the communications with the accountants were disallowed.  DJ MacKenzie reduced documents time from 40.4 hours to 22 hours.

With regards to the ATE premium – this was a three stage premium and the third stage of £2,835.00 including IPT was being claimed.  We concentrated on the fact that stage 3 was defined as – where the case settled within 45 days of the trial date, or at trial.  In this matter, no trial date had been listed; it had only been put in a trial window.  On that basis, the hearing fee had been recoverable from the court and he said that the same principle applied in respect of the ATE premium.

The claimant’s representative complained that this was not specifically pleaded in the Points of Dispute and said that in any event, settlement within 45 days of the trial window was sufficient because the trial could have been within 45 days of the settlement date.

The DJ was not persuaded by her arguments and agreed with our advocate that only stage 2 was payable, which reduced the premium to £1,260.00.

The bill had been assessed at £23,572.67.

Our CPR P47.19 offer had been £23,000.00.  We had then made a fully inclusive offer, after the hearing had been requested, of £28,550.00.  The claimant’s only counter offer had been £34,100.00.

We both asked for costs of detailed assessment.

DJ MacKenzie gave a long judgment at the conclusion of which he made no order for the costs of the assessment.  With regards to interest he said, that he doesn’t agree with the decision in Gray v Toner and he confirmed that interest would be payable, although we were unable to ascertain the position in respect of interim payments so we weren’t able to confirm the figure.