CASE NOTE: Jamadar v Bradford Teaching Hospitals NHS Foundation Trust EWCA [2016] Civ 21 July 2016)

Abstract 

The Court of Appeal held that it was within a Judge’s discretion to refuse relief from sanctions where the Claimant had failed to file a costs budget, pursuant to CPR 3.13, thus restricting the Claimant to the recovery of court fees only in accordance with CPR 3.14. Directions were given to hold a costs management hearing and, whilst liability was subsequently admitted by the Defendant, this did not obviate the need for the Claimant to file a costs budget.

 

Facts

The Claimant had received negligent treatment that led to the amputation of one of his legs. The Defendant initially denied liability, as a result of which the court sent out forms N149C indicating allocation to the multi-track and the defended status of the claim. Subsequently, the Defendant admitted liability and the N149C was revoked and judgment was entered for an amount to be determined.  Notice of a case management conference was sent to the parties, as a result of which the Defendant filed and served its costs budget, while the Claimant failed to do so, in spite of the Defendant’s requests. At the case management conference, directions were given for the appointment of five experts, a five day trial was directed and the Defendant’s costs budget was approved.  The Claimant’s recoverable costs were restricted to court fees only under CPR 3.14. The Claimant applied to vary that order or obtain relief from the sanction, but this was refused by a District Judge. The Claimant’s first appeal was heard by a Circuit Judge, who dismissed the appeal on the basis that the claim was “self-evidently multi-track” and the “automatic” sanction at CPR 3.14 had been correctly imposed.

 

The Claimant appealed again on the grounds that:

a)      The Circuit Judge had been wrong to hold that CPR 3.13 applied, as the effect of the revocation of the N149C was that the case no longer proceeded on the multi-track;

b)      The District Judge and the Circuit Judge had both been wrong to refuse relief from sanctions.

 

Held

On the question of allocation, the Court of Appeal held that the matter was self-evidently multi-track as the claim was for around £3 million and the parties agreed to an extensive list of expert witnesses.

On the question of relief, the Court held that the District Judge applied the three part test established in Dentonv. White & Others [2014] EWCA Civ 906 properly in that:

 

1. 1.      There was a serious breach which would have resulted in there having to be a further case management conference, which could be costly and demanding of court time.
2. 2.      The reasons for the breach had been rejected by both the Circuit Judge and the District Judge in the strongest possible terms.
3. 3.      In considering all the circumstances of the case it was clear that some judges might have been more lenient but the decision of the District Judge was clearly within his discretion.

 

Analysis

This case serves as reminder that it is better to be safe than sorry. Whilst it may be argued that the Claimant’s solicitors were “tricked” by the revocation of the N149C, it is difficult to see how, once a matter had been allocated, it could be ‘unallocated’, thereby obviating the need for the filing of a costs budget. Additionally, the claim was obviously both complex and of considerable value. It follows that there was no ‘good reason’ for non-compliance.

The decision of the District Judge to refuse relief was held to have been within their discretion.  Clearly, as the Court itself recognised, other judges might have been more lenient, particularly as there is precedent for granting relief from sanctions imposed as a result of a misunderstanding as to the effect of an order, rule or practice direction (as in Fung v Waitrose Ltd [2011] EWHC 1356 (TCC) which concerned a consent order). Additionally, in the recent case of Murray v BAE Systems Plc (Liverpool CC, 78/2015)[1]the Court granted relief where there was a 7 day delay in filing a costs budget; following this the Claimant’s solicitors may have anticipated a more lenient approach. The decision in Jamadar v Bradford Teaching Hospitals NHS Foundation Trust illustrates that appellate judges will be slow to interfere with the exercise of judicial discretion, even if that comes at the expense of consistency.