A judge has refused to back down after slashing costs for a clinical negligence case where the damages were a fraction of the amount claimed.
Claimant firm Thompsons Solicitors had originally served a bill of costs for £72,320 after settling a case for £3,250.
That costs figure was reduced to £24,600 after a provisional assessment last summer, with Master Simons, Costs Judge, finding that the bill was disproportionate.
Aside from minor changes concerning costs for attendance and medical disbursements, Simons declined to make significant increases to that final costs figure following an oral hearing last month.
The case, based around a delayed diagnosis of a pituitary tumour, was settled in July 2015 – almost two years after Thompsons was first instructed. The defendant admitted breach of duty but denied causation. The claimant’s settlement figure was accepted after both sides had failed with Part 36 offers.
The judge, sitting in the Senior Courts Costs Office in Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust, insisted his assessment of costs had been reasonable and proportionate.
Simons saw no evidence of planning to decide the necessary work for the case, which the solicitors knew was going to be worth no more than £5,000.
‘Costs of £72,320.85 for a low-value medical negligence claim are disproportionate,’ said the judge.
‘They do not bear any reasonable relationship to the sums in issue in the proceedings. The litigation was not particularly complex, no additional work was generated by the conduct of the paying party and there were no wider factors involved in the proceedings such as reputation or public importance.’
Thompsons had attempted to argue the defendant’s conduct should be taken into account and the claim was of ‘considerable importance’ to the claimant.
The firm said this was a clinical negligence claim which was by its nature complex and which required a high degree of skill and experts with specialist knowledge to prove causation.
Simons said the £20,000 cost of instructing experts was disproportionate, and he insisted that to be recoverable from the paying party the costs ‘must be proportionate whether or not they were reasonably or necessarily incurred’.
The judge had reduced the bill for legal expense insurance from almost £32,000 to just £2,120.
Thompsons argued that the premium was based on a ‘basket of cases’ which allowed the insurer to spread the risk and keep premiums at a fair level.
But Simons said the appropriate test to apply was not whether the amount was reasonable, but whether the amount was reasonable and proportionate.
‘No consideration appears to have been given as to the proportionate costs of running the case,’ he said. ‘It should have been obvious to them that if they were going to utilise this particular insurance policy then this would likely mean an expensive premium.’
The judge added: ‘Costs are proportionate if they bear a reasonable relationship to the sums in issue in the proceedings. This was a routine low-value medical negligence case. Proceedings were issued not as a result of the complexity of the case but because of the solicitors’ concerns about limitation.’