Denying the successful Claimant fixed costs: a cautionary tale

Articles | Thu 27th Feb, 2020

Hussain (I) & Begum (II) v Aviva Insurance Limited

The rule that costs follow the event is very rarely displaced, except in favour of claimants in fast track claims who are protected by the operation of QOCS. However, in some circumstances, where the Claimant (or the Claimant’s solicitors) have prepared a claim so badly that it affects the level of the damages awarded or the smooth running of the trial, a DJ can (by operation of the general discretion as to costs – see CPR 44) refuse to award fixed costs at all.

In a recent claim, 2 claimants brought claims for whiplash type injuries arising from the same incident. The first claimant required the services of an interpreter, but had not properly certified the translation of the Particulars of Claim. This issue was raised as a positive point in the Defence, but was not dealt with. I raised this as a preliminary point on the morning of trial, and, there being no good reason for the problem still remaining live, the claim was struck out without further ado.

The trial proceeded with only one claimant. Although there were inconsistencies and problems with the evidence as between the various documents in support of the claim, this was mainly down to the ineptitude of the Claimant’s solicitors in obtaining proper medical evidence and preparing the bundle. The claimant himself was not dishonest, and liability had been admitted. The DJ awarded a modest sum for general damages, just above the threshold for the Fast Track.

However, on costs, the situation was quite different. In respect of the costs relating to C1, whose claim had been struck out, the DJ accepted my submission that the solicitors should have to show cause as to why they should not be personally liable for D’s costs (a “wasted costs order”). On C2’s claim, bearing in mind that he had been successful, the DJ made an order for “no order as to costs” save for the court fees. C’s solicitors therefore recovered NO costs at all in respect of either claim, and may well have to pay a wasted costs order to D. Mere success at trial is therefore no guarantee that an inadequate solicitor will recover their costs.

Francesca was instructed by DAC Beachcroft.