Given the current uncertainty of proportionality a recent case we set down for Provisional Assessment has indicated the tables may now be turning in the Claimant’s favour.

The case was a relatively small clinical negligence claim where the Defendant delayed in providing proper treatment to the Claimant after they failed to diagnose a ligament injury to the Claimant’s knee.

The claim took just over 3 years to conclude and the agreed settlement figure was £4,800.00.

It is important to note the relevant issues in this case, outlined below, as this explains the Master’s reasoning and decision on the proportionality issue.

Breach of Duty and Causation were both denied by the Defendant and evidence was obtained from a Consultant in Emergency Medicine and an Orthopaedic Surgeon. Following the gathering of evidence and receipt of the Defendant’s denial, proceedings were issued with the Court. Shortly after, the Claimant made a Part 36 offer for £6,000.00, which was rejected by the Defendant. The Defence served maintained the denial and so the claim progressed through litigation with the case being allocated to the Multi-Track.

“The Defence served maintained the denial and so the claim progressed through litigation with the case being allocated to the Multi-Track.”

Following allocation the Defendant put forward a ‘Drop Hands’ offer which was rejected by the Claimant. However, the Claimant showed willingness to settle the case as quickly and as early as possible and responded by making a Part 36 offer for £4,800.00. It took the Defendant some 6 weeks to respond whereby they accepted the offer and the case was formally settled by way of Consent Order.

The Bill of Costs totalled £66,925.06 with base costs claimed at £19,089.80. In addition, a 100% success fee was sought together which hourly rates of £300, £225 and £118. The ATE premium was claimed at £16,425.00.

Following service of the Bill the parties could not agree an appropriate settlement figure. The claim progressed through Points of Dispute and Points of Reply. A Provisional Assessment was requested at the SCCO. Master Rowley conducted the Assessment and assessed base costs at £11,797.20 together with a 50% success fee and disbursements as claimed in the Bill. The global assessed figure was therefore £42,449.74. However, Master Rowley directed that the matter be referred back to him, following the parties agreeing the calculations, so that proportionality and a ‘step back’ approach could be considered.

“Detailed and strong written submissions were therefore filed with the Court and Master Rowley concluded that the costs provisionally assessed were reasonable and proportionate given the factors set out in CPR 44.3(5). “

Given the recent proportionality decisions we were of course concerned that base costs would be reduced even further, particularly given the low settlement value. Detailed and strong written submissions were therefore filed with the Court and Master Rowley concluded that the costs provisionally assessed were reasonable and proportionate given the factors set out in CPR 44.3(5). The Master supported his reasoning by stating that notwithstanding Master Gordan-Saker’s decision in BNM, he did not consider that he should include the additional liabilities in the sum to be used when determining whether the reasonable sums allowed are also proportionate. In the Master’s view, the combined sum for base profit costs and disbursements, excluding the ATE premium, bears a reasonable relationship to the damages of £4,800.00. Furthermore he believed the complexity of any clinical negligence claim and the opportunities the Defendant had in this case, but did not take, to engage in settlement negotiations prompted by the Claimant’s Part 36 offer strengthen the relationship between damages and costs in any event.