The Dekagram: 10th July 2023

• Published date: 12 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Personal Injury
• Law Firm: Deka Chambers
• Author: Mr Andrew Spencer and John Schmitt

This week we bring you news of two cases considering how and when to claim items of special damage (spoiler: claim them as such, and ideally prior to judgment). We were also interested to read an appeal judgment, in Merlin Entertainments Plc v Idziak [2023] EWHC 1597 (KB), in which Jacobs J reminds us all for the need for judges to give adequate reasons for their findings, having provided a handy review of the relevant authorities. He concluded:

[Counsel for the Claimant] said that justice can be a bit rough and ready in the county court, and drew a contrast with typical judgments from the Business and Property Court in the Rolls Building, where the appeal took place. However, the role of the courts, including on an appeal, is to apply the law and do justice as between the parties. I note that the case-law on the need for adequate reasons (see Section D above) has developed in the context of county court judgments.

A welcome reiteration of what the County Courts are for.

Schr'dinger's costs. Or: when are costs, not "costs"?

In Hadley v Przybylo [2023] EWHC 1392 (KB) Master McCloud had to determine whether or not the cost of lawyers attending case management meetings with medical and other professionals, and costs of attending regular meetings with financial and court of protection deputies were costs that could be budgeted and (therefore) claimed on costs assessment. The issue arose in a case where the budget was over '1 million and the future cost of attending such meetings was over '50,000.

Master McCloud retuned to first principles, holding that the concept of "costs" in litigation means costs incurred in the progression of litigation, and asked whether these costs materially progressed the case. It was noted that something could materially progress the case even if it did not actually move the case forward - for example, costs incurred which lead to something not being pursued could still progress the litigation.

The claimant's argument was that these attendances progressed the drafting of the Schedule of Loss, and indeed were an integral part of that process. Master McCloud disagreed, holding that whilst occasional letters to case managers or deputies, or liaising with them for disclosure, statements or expert evidence would progress the claim, this was qualitatively different to regularly attending case management meetings. Doing so did not "progress" the case. As such, the costs of so-doing were not included in the budget.

In reaching this decision...