A litigant in a personal injury claim has been penalised for not contesting a costs bill within the allotted time, despite his representatives pleading that their work was affected by the first lockdown.

The judgment in Masten v London Britannia Hotel Ltd not only looks at the Denton application to non-compliance with court deadlines, but is also one of the first to assess whether Covid-19 and the lockdown of last spring could be considered as good reason for any default. 

Master Leonard said there had been a negligent failure to serve points of dispute, which could not be offset by the effects of the circumstances of those working on the case.

The court heard that the defendant was due to pay the claimant’s costs after a personal injury claim settled for around £332,000. These costs were estimated by the claimant at around £364,000.

The parties had agreed that any points of dispute would be received by 28 February 2020, but this deadline came and went despite the claimants saying they would file a request for a default costs certificate (DCC).

Costs draftsman Philip Gaskell, director of national firm QM Legal Costs and initially responsible for the preparation of the points of dispute, told the court that his workload had increased ‘substantially’ by February and he re-allocated the case to colleagues, with instructions to complete the points of dispute.

But the file was not properly re-allocated, and Gaskell said this error was not spotted because the firm moved to remote working overnight because of the lockdown, despite 70% of files worked on being on paper. He then had to juggle work with jointly caring for his daughter, and he reported that lockdown was ‘extremely busy and stressful’.

The DCC was received in mid-June, and – following several problems with the court’s e-filing service – the application to set aside filed on 26 August.

The defendant accepted that the missed deadline was a significant and serious breach, but submitted that it would be just to grant relief in the circumstances.

Claimant lawyers submitted that work pressure, family commitments and administrative failures were not good reasons for default.

Giving judgment, Master Leonard said the claimant was being asked to relinquish the DCC and to accept a four-month delay to serve points of dispute. He added: ‘There are cases in which the application of the overriding objective and the balance of fairness require that the consequences of negligence must be borne by the negligent party. This is one of them.’ The application to set aside the DCC was refused.


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