The High Court has rejected a defendant’s plea for a costs management order regarding a child’s clinical negligence case which could still have years to run. Master Cook stated that the policy of children’s cases being exempt from costs management should be adhered to, even if the defendant was unhappy with the costs incurred so far.

The parties in CXS v Maidstone and Tunbridge Wells NHS Trust had agreed at a previous case management conference to stay the claim until 2027, at which point the claimant would be 12 years old. She sustained a serious brain injury at birth and liability was admitted in full by the NHS trust in 2019, but damages remained in dispute.

Defendant lawyers argued in a hearing following the CMC that the claimant’s total costs of £1.15m were ‘manifestly excessive’. The rates charged by claimant firm Bolt Burdon Kemp for ‘partner preparation’ were £530 per hour – a sum significantly in excess of the £373 guideline hourly rate for London – and the total costs of disbursements (£92,000) were significantly less than the level of profit costs (£874,000).

But Master Cook ruled out making a costs management order limited to the period of the stay, as proposed by the defendant. He said that ‘on any view’ the costs incurred by BBK were high, and on cases valued at more than £20m the approved budgets would usually fall between £750,000 and £1.5m.

He pointed out, however, that the firm had to undertake a considerable amount of work on the girl’s care and therapy regime and the management of interim payments.

On a general point of principle, he continued, there were ‘very sound policy reasons’ why children’s claims should be exempt from costs management. This case ‘currently bristles with complexity and unknowns’ and there would be many years before a final prognosis could be made and directions made for trial.

He added: ‘There is not in my judgment sufficient certainty to enable sensible assumptions to be made concerning the extent of the work required in the duration of the stay to provide the basis for a budget.

‘If incorrect assumptions are made there is the potential for further applications to vary the budget which would just add another layer of cost to the proceedings, alternatively a budget may be set which is artificially high.’

If the defendant remained concerned about the level of incurred costs, those concerns would be addressed by a detailed assessment at the conclusion of the claim, the master suggested.

BBK had argued that ‘extensive’ material had been produced by the client’s therapists which required ‘very substantial liaison’ between solicitors and experts. The firm accepted that the court had a discretion to apply costs management to the claim but submitted it would be ‘wholly inappropriate’.


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