Seabrook v. Adam (Norwich CC, 22.01.19)
3rd September 2019
Anthony Johnson successfully represented the Defendant in this costs dispute that arose from a Fast-Track trial that took place in October 2018 where the DDJ had accepted the Defendant’s primary case that, largely due to inconsistencies in the medical evidence, the Claimant had failed to prove the 32-month back injury that he had alleged, but had found that the Claimant had proven an eight-week neck injury, awarding him damages of just over £1,500. At a separate costs hearing in front of DJ Reeves (a Regional Costs Judge), the Claimant argued that the Defendant should pay their full costs of over £33,000, principally for the following four reasons: (i) the Claimant had beaten a 90:10 offer on liability made after liability had been conceded; (ii) the Defendant had unreasonably refused to engage in ADR; (iii) the case was ‘exceptional’ pursuant to CPR 45.29J; and (iv) the Defendant’s conduct had been unreasonable in referring to fundamental dishonesty in correspondence but not pleading the same in its Defence and not relying upon the same at trial.
DJ Reeves held that the Claimant should be restricted to fixed costs, referring to the case as a ‘perfectly normal, unexceptional, common-or-garden RTA PI claim’, and accepting that the Defendant had been entitled to put the Claimant to proof given the obvious inconsistencies in his claim. He held that it was not unreasonable for defendants to put claimants on notice of the possibility of an FD finding even where the same has not been explicitly pleaded, and accepted that it would have been very difficult for the Defendant to make any offer in a situation where the Claimant’s prognosis had been ‘varying, shifting and altering’.
He found that the Claimant’s purported Part 36 offer could not be construed as a genuine attempt to settle the claim given that it related to a matter that had already been conceded 100% by the Defendant- he held that the ordinary, common use of the English language did not support the Claimant’s interpretation that liability extended to causation in a situation where the Defendant admitted the former but not the latter. He then held that ADR would not have been realistic or proportionate in a low end Fast-Track claim.
Having successfully resisted the Claimant’s arguments, the Defendant was awarded its costs since the date of the original trial on the indemnity basis, which could be set off against the Claimant’s full award of damages pursuant to CPR 44.14(1). The Claimant is currently in the process if appealing the decision.