The recent case of Javed v British Telecommunications plc [2011] EWHC 90212 (Costs) is an interesting example of claimant solicitors being penalised for issuing proceedings unnecessarily and prematurely.
The Master concluded:
“I am in no doubt that the Claimant was unreasonable in commencing proceedings when she did. By issuing the proceedings when she did, the Claimant was in breach of the pre-action protocols. It is clear from the correspondence that at the time proceedings were issued a settlement was still being actively explored by the Defendant. It is no answer for the Claimants to state that the lack of positive response to the Claimant’s Part 36 offer was a justification for issuing proceedings. No responsible advisors acting for the Defendant could have recommended any proper consideration of the Part 36 offer without the full disclosure of all the relevant medical evidence.
…This was a fairly standard, small road traffic accident claim. The only slight complication was the Claimant’s previous accident. Had the Claimant disclosed all the relevant medical evidence with her Part 36 offer, in accordance with the Pre-Accident Protocols, I have little doubt that this claim would have settled without the necessity for the issue of proceedings. Therefore my decision on the first issue is that the Claimant acted unreasonably in issuing proceedings.”
The Defendant argued that costs should be assessed by reference to the sums that would have been allowed had the proceedings not been issued. This is despite the claim settling by way of Part 36 and the existence of a Sealed Consent Order providing for costs on a standard basis.
The Master concurred with this line of argument:
“In my judgement, the Court can limit the costs to fixed recoverable costs, and in this case the court should limit the Claimant’s costs to fixed recoverable costs and the court is not necessarily obliged to carry out a line by line assessment of the Claimant’s bill of costs.”
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