Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539]
This was a clinical negligence matter where following conclusion of the claim, the claimant was entitled to costs. Following service of the Bill of Costs, the Defendant put forward the submission that in view of the numerous errors in the Bill of Costs this should lead to no costs being awarded, or costs being reduced pursuant to CPR 44.11.
More specifically, the Defendant referred to CPR 44.11(1) which provides as follows:
“Court’s powers in relation to misconduct
The court may make an order under this rule where –
(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or
(b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.
Reference was also made to Gempride Ltd v Bamrah and another [2018] EWCA Civ 1367, the most recent, extensive and authoritative exposition of CPR 44.11.
The alleged errors were as follows:
- That the bill certified that there had been no interim payments when an interim payment of £90,000 had been made. The Master dismissed this as trivial.
- That the bill stated that the risk assessment was conducted by the current firm as opposed to the firm that the current firm had merged with. The Master dismissed this too as not being deliberate and minor in nature.
- That the bill claimed a 100% success fee when the risk assessment stated there was a 60% prospect of success, which equated to a 67% success fee. The Master dismissed the same on the basis that the CFA provided for a 100% success fee and insofar as the accuracy of the bill was concerned, the risk assessment inconsequential.
- That the statement of reasons for the percentage increase bore no resemblance to the original statement of reasons. The Master found that the defendant had not been misled as no reliance was made in respect of the same.
- That the statement of reasons inaccurately stated the part 36 risk as: “If this happens, we will not claim any costs for the work done after the last day for acceptance of the offer or payment.” The CFA actually said: “If this happens, we will not add our success fee to the basic charge for the work done after we receive notice of the offer or payment.” The Master dismissed the Defendant’s argument that they were not prejudiced in any way by this error.
Following the Master’s rejection of the Defendant’s arguments, the Defendant appealed to the High Court. The Defendant however was just as unsuccessful on appeal. Mr Justice Stewart upheld all the decisions made by the Master.
In summary, whilst this case serves as a reminder as to the importance of ensuring a bill of costs is accurate, this will hopefully serve paying parties as an even stronger reminder not to bellow reference to ‘Gempride Ltd v Bamrah’ in Points of Dispute whenever an inaccuracy is uncovered.
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