“Proportionality Trumps Necessity”?

Published December 16, 2015 by

The recent case of Hobbs v Guys and St Thomas’ NHS Foundation Trust [2015] CWHC B20 (Costs) leaves me somewhat perplexed in relation to two issues.

Firstly let us look at the case itself. Mr Hobbs was an 80 year man who discovered a lump close to his ear. His GP requested an urgent appointment with the Hospital’s clinic which was delayed as a result of the Defendant’s negligence (as admitted by them) which in turn delayed the surgical removal of the said lump and caused Mr Hobbs unnecessary increased pain and discomfort; all through no fault of his own. Mr Hobbs retained Simpson Miller solicitors to represent him resulting in a settlement in the sum of £3,500 plus the Claimant’s costs.

Master O’Hare provisionally assessed the Claimant’s costs on an item by item basis on the grounds of necessity and reasonableness, i.e. allowing those costs which were necessary and reasonable to see the matter to its conclusion and disallowing those items which were not. Mr O’Hare then applied CPR 44.3 (2) and (5) and reduced the costs further by £1200 to £9879.

One assumes at this stage that Mr Hobbs’ retainer included the standard clause which safeguard’s the solicitor’s right to look to the Claimant for any shortfall in their reasonably incurred costs. Master O’Hare said in his judgment ‘… although it was reasonable for the Claimant’s solicitor to incur these costs it is unfair for the Defendant to have to pay for these items. The rule against the use of hindsight in costs assessment was based upon reasonableness”, he added “which today is trumped by proportionality”. Therefore Mr Hobbs could be left with the maximum sum of £2300 (or even nothing dependent upon his Solicitor’s reasonableness) for a delay not of his choosing and the increased suffering as a result of the same.

Secondly and following on from the first issue is that of necessity. The English language defines the word ‘necessity’ as that of something that is essential and in the writers opinion, in relation to litigation, implies an action without which the success of the claim hangs in the balance resulting in the increased risk of failing with the case.

The natural result of the Hobbs case then is that a solicitor must, in order to act in the best interest of his client, undertake work for which he may not be reimbursed and will not know whether he will be until the conclusion of the costs process. Therefore at best, the solicitor will have to undertake necessary work for which he will not be paid and at worst the solicitor will not undertake the work which in the past he may have deemed necessary.

As for the Client, well at best he must informed in no uncertain terms that he may end up with minimal damages once he has paid any shortfalls in the costs; and at worst he will be unable to find a solicitor willing to represent him  based solely on the potential amount of damages in question. All of this for a potential claimant, who has been disadvantaged and suffered loss and damage through an incident which he did not cause, ask for or want.

Anybody remember the term ‘Access to Justice’? It appears to have been lost somewhere along the line.