In the recent case of Andrew Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust  EWHC B5 Master Simons considered proportionality in respect of both the total costs claimed and also the ATE premium itself. He put particular emphasis on the fact that the Claimant's solicitor should have appropriately planned the running of the matter on the basis that it was always known to have been a low value claim. The judgment is certainly one worthy of consideration for those litigators who often deal with low value claims.
The claim for costs arose following settlement of a clinical negligence claim. The Defendant had failed to refer the Claimant for imaging which, it was alleged, would have shown a pituitary tumour some nine months earlier than it was actually found.
The claim ultimately settled for £3,250 and the total costs claimed were £72,320 which included a post LASPO ATE premium of £31,976.49. Costs could not be agreed and the bill of costs was provisionally assessed by Master Simons, Costs Judge, in the sum of £24,604.40. The Claimant requested a review of a number of areas of the provisional assessment. The primary issues were the finding that the costs were disproportionate and the reduction of the ATE premium from £31,976.49 to £2,120.00. The Claimant also requested a review of the reduction to the hourly rate, Counsel’s fees, Expert's fees, and certain aspects of the time claimed; however these minor points are not addressed in the judgment or article.
All of the work in the bill of costs was undertaken after 1 April 2013 and thus the new test of proportionality applied to the entirety of the costs.
The Defendant contended in their points of dispute that the costs claimed bore no relationship to the factors laid down in CPR 44.3(5) which should be used when considering whether the costs were proportionate. Further, the Defendant submitted that no reasonable privately paying client would incur the level of costs claimed to recover such a small sum. The Defendant submitted that the £24,604.40 allowed at provisional assessment was a proportionate amount.
The Claimant contended that the Defendant's conduct in disputing causation should be taken into account as it caused the Claimant to need to issue proceedings, and that whilst the damages were small, there was negligence on the part of the Defendant and that clinical negligence claims are complex by nature.
In reconsidering the proportionality assessment, Master Simons considered the comments made by H H J Alton, as referred to in Jefferson v National Freight Carriers Plc  EWCA Civ 2082:-
"In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost. While it is not unusual for costs to exceed the amount in issue, it is, in the context of modern litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality."
Master Simons found nothing to suggest that the Claimant's solicitor had undertaken any such case planning despite being aware that the claim was going to be low value. In fact, a number of expensive medical experts were instructed, some of whom may not even have been necessary and the fees of others' were reduced on assessment as being disproportionate.
Master Simons ultimately found that the costs did not bear a reasonable relationship to the costs claimed; the litigation was not particularly complex; no additional work was generated by the Defendant's conduct and there were no wider factors involved. Accordingly the costs were again found to be disproportionate.
It is also notable that Master Simons considered additional liabilities along with the base costs in considering proportionality and reducing the total costs claimed. He considered that post April 2013 all costs claimed within the bill of costs are open to reduction on the basis of proportionality as CPR 44.3(2) makes no distinction between base costs and additional liabilities.
The ATE Premium
The ATE premium was claimed in the sum of £31,976.49 inclusive of IPT. Being a post April 2013 premium, it related only to the cost of medical reports relating to liability and causation.
The Defendant provided copies of alternative premiums within their points of dispute which ranged in value from £595 to £3,500 plus IPT; these premiums were pre LASPO and so could not be directly compared but did indemnify against a higher financial risk than a premium relating to medical reports only. The Defendants' submission was that the premium should be reduced to no more than £500. The Defendant also disputed the premium’s compliance with the Courts and Legal Services Act 1990 or with the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2).
The Claimant, naturally, supported the compliance of the policy with the aforementioned rules and averred that it had been reasonable to take out the policy. They thereafter sought to rely on the judgment in Rogers v Merthyr Tydfil County Borough Council  EWCA Civ 1134 which found that if the premium was necessarily incurred and reasonable in amount having regard to the litigation risk then it was therefore also proportionate.
The Defendant’s submission was that the post April 2013 proportionality test gave the Costs Judge the power to reduce a premium if it was not both reasonable and proportionate.
Master Simons again found that the premium was disproportionate and that the test in Rogers did not apply as that judgment had been made at a time when proportionality considerations were different to those posts April 2013.
Again, Master Simons saw no evidence that the solicitor had considered the proportionate costs of bringing such a low value claim. It was clear at instruction that it was going to be a low value claim and Master Simons was of the opinion that the solicitors should have considered this fact. Particularly as the number of expert reports they would need resulted in a very high cost of a premium which is based on the cost of reports obtained. Master Simons decided that the Claimant's solicitors should have investigated other policies but it seems that this did not happen.
As they did when proportionality was being considered as a whole, the Claimant again contended that additional liabilities should be excluded from the proportionality test; Master Simons again disagreed on this point. In fact he went on to comment that the premium is based on a percentage of the expert’s fees (in this case, 200%) and the expert's fees were considered disproportionate and yet the Claimant was still seeking the premium on the basis of the full fee. Master Simons considered that where, as in this case, a premium was deferred, it should be based on the reasonable amount for those reports rather than the actual amount paid. Further, no consideration seemed to have been given to what element of the fees pertained to medical agency fees and not the expert's fees.
Ultimately the premium was again found to be disproportionate to the value and complexity of the litigation and the provisionally assessed amount of £2120 inclusive of IPT was upheld. Master Simons went on to clarify that such considerations should be addressed case by case and that he was not specifically saying that a similar premium wouldn’t be appropriate in a similarly low value case. The facts he considered were case specific and included accounting for the Claimant's failure to consider other options.
Having allowed some additional amounts in some small areas of the bill, but again finding that the total costs and the ATE premium were disproportionate. Master Simons took a step back and was satisfied that total amount now allowed was reasonable and proportionate.
Master Simons' judgment raises nothing out of the ordinary or particularly unexpected. It is noteworthy, however, that he does consider that additional liabilities form part of the total costs to be considered when assessing proportionality under CPR 44.3(2). This is in line with the decision of Master Gordon-Saker in BNM v MGN Limited  EWHC B13 (Costs) (03 June 2016) but goes away from the latter decision of Master Rowley in King v Basildon & Thurrock University Hospitals NHS Foundation Trust  EWHC B32 (Costs). Given the varying decisions which are coming from the SCCO on this point, one would expect that it won't be long before we have a binding decision.
The key lesson to learn from this decision though is that careful planning of a case can make all of the difference when it comes to costs recovery. Master Simons did not specifically say that he would have allowed the premium should another suitable one not have been available but neither did he say that he would invariable disallow a high premium in a low value claim. However he did specifically comment that he Claimant’s solicitor’s failure to consider any other options did have a bearing on his decision.
It may be that all of the work carried out by the Claimant’s solicitor was both reasonable and necessary but with the recent changes this is no longer enough. It may be that a very early case plan and estimate of likely costs can either keep the costs incurred proportionate; or at least provide the solicitor with the information needed to discuss with the client whether they are willing to run their claim on the basis that they may be paying a shortfall representing those costs which are considered disproportionate.