Neutral Citation Number: [2009] EWHC 1837 (QB)
Case No: HQ05X01838
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2009

Before :

MR JUSTICE RODERICK EVANS
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Between :

	Janis WILLIAMS	Claimant	
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	Calvin JERVIS (Lex Komatsu)	Defendant	

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Mr Marcus Grant (instructed by Dickinson Solicitors) for the Claimant 
Mr David Platt (instructed by Halliwells LLP) for the Defendant 

Hearing dates: 23rd April 2009
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1st RULING ON COSTS

Judgment

Mr Justice Roderick Evans: 

1.	Judgment in this case was handed down on 8th October 2008.  The claimant was successful and on the basis of a finding of 100% liability judgment was entered in her favour in a sum a little under £512,000.
2.	There remained the issue of costs.  One aspect of costs which has always been uncontroversial is the costs of the claimant’s unsuccessful attempt to adduce further evidence after each party had closed its case and filed closing submissions (see paragraph 14 of the judgment).  The defendant’s costs of and occasioned by that attempt must be borne by the claimant.  Those costs will be on the standard basis.
3.	The remaining costs of the case, like so much in this action, have been the subject of prolonged dispute.  
4.	The defendant’s initial attitude was that it could not resist an order for costs on the standard basis.  However, on 7th October 2008 Christopher Dickinson, the claimant’s solicitor, filed a witness statement in which he sought orders:
a)	That the defendant pay the claimant’s costs on the indemnity basis 
and
b)	That the claimant be given time to consider whether she should issue an application seeking to join Dr Michael Gross to the proceedings pursuant to CPR 48.2 for the purposes of costs only.
5.	At the hearing on 8th October 2008 the claimant withdrew the second of those applications but wished to pursue the first.
6.	Mr Platt for the defendant was not in a position to deal with that matter at the hearing and sought time to marshal his arguments.  Of course, the defence were given time and on 7th November 2008 Hugh Mullins, the partner in Halliwells having conduct of this matter on behalf of the defendant filed a witness statement in reply in which he sets out arguments as to why any order for costs made against the defendant should be on the standard basis and goes on to develop an argument that because of the manner in which the claimant conducted the proceedings the claimant should recover only 60% of her costs from the defendant.
7.	On 20th November 2008 Mr Dickinson filed a 23 page witness statement in reply rejecting the criticisms made against him, justifying his conduct of the claimant’s case and giving further particulars of his criticisms of the defendant – in reality criticisms of the defendant’s insurance company and the solicitors instructed – to justify his continuing application for costs on the indemnity basis.
8.	I heard oral argument on these matters on 23rd April 2009.
The approach to making an order for costs
9.	The award of costs is a matter within the courts discretion (CPR 44.3.1) and although the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party the court may make a different order depending upon the circumstances of the case (CPR 44.3.2).  The circumstances to which the court should have regard when deciding what, if any, order as to costs it should make include the conduct of the parties both before and during the proceedings, whether it was reasonable to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or defended a particular issue.  Whether a successful claimant has exaggerated his claim is also relevant (CPR 44.3.4 and 5).
10.	An order for costs may be made in a variety of forms.  A party may be ordered to pay a proportion of or a fixed sum towards the costs of another party; an order can be made in relation to costs of a distinct part of the proceedings but where a court is considering making such an order it should, if practicable, make an order for payment of a proportion of the other party’s costs or of a stated amount in respect of those costs (CPR 44.3.6 and 7).
11.	The court may order costs to be paid on the standard basis or the indemnity basis.  The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that in addition to costs being reasonably incurred they should also be proportionate to the sums and issues at stake in the litigation and in the event of the assessment judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.
12.	The Court of Appeal has declined to define the circumstances in which a court could or should make an order for costs on the indemnity basis.  In Excelsior Commercial and Industrial Holdings Ltd –v- Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879 Lord Woolf, Chief Justice, said:
“This court can do no more than draw attention to the width of the discretion of the trial judge and re-emphasise the point that has already been made that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm.  That is the critical requirement.”
13.	It is, therefore, important to bear in mind, firstly, that an order for indemnity costs should not be made simply because the paying party has been found to be wrong or his evidence has been rejected in preference to that of the receiving party and, secondly, that when assessing the reasonableness of the conduct of the paying party to see whether it is outside the norm for such cases, one must avoid an assessment based on hindsight i.e. assessing the conduct with the knowledge of the outcome of the case and with knowledge of how a particular issue was ultimately resolved.
14.	With those principles in mind I turn to deal with the submissions of the parties and I start with those of the defendant.
The defendant’s submissions
15.	In support of their contention that the claimant should recover no more than 60% of her costs the defence rely upon my finding that the claimant lied about her signing the Nursing and Midwifery Council Notification of Practice form (paragraph 56 of the main judgment) – a document which came to light following enquiries by the defence rather than disclosure by the claimant – and my finding that the claimant exaggerated her symptoms (paragraph 59).  Taking these findings and paragraphs in isolation is not helpful.  Each has to be looked at in the context of that passage in the judgment which extends from paragraphs 56 – 61 inclusive.  Neither the lie nor the exaggeration, for the reasons set out in the judgment, is of the sort which in the circumstances of this case is relevant to costs.  The defence also point out that the claimant’s own assessment of how she was regarded at work before the accident was rejected (see paragraphs 38 and 39 of the judgment).  Again, however, this is not a matter which in my view should be reflected by the kind of order the defence seek.
16.	Mr Mullins goes on at paragraph 32 of his statement to complain that the claimant persisted with a factual allegation that was not made out and was always nothing more than assumption.  He is referring to the fact that the claimant reported that her car had been propelled 20 feet forward and rotated through 90 degrees by the impact.  It is correct that the claimant repeated this account to various medical experts but it was made clear in her first witness statement that that account was based, in part at least, on what she had been told by a garage mechanic.  For the reasons I expressed in paragraph 33 of the judgment it was not possible or relevant to make a firm finding on how far forward Miss Williams’ car was shunted by the collision.  No criticism relevant to costs can be made of the claimant about these matters.
17.	The need for otological evidence arose late in the history of this case and that is a matter about which the defence complain saying that they were forced to deal with this matter only months before trial and were unable to secure the services of their preferred expert.  The claimant states that there were two reasons for seeking the opinion of a consultant otological physician.  Firstly, Mr Price indicated in conference in August 2007 that he could not comment definitively by reference to irrefutable objective scientific evidence whether or not the claimant did have a peripheral vestibular lesion and, secondly, in October 2007 the defence served Dr Gross’s report that cast doubt on whether the claimant had suffered any vestibular injury and which concluded that she was a malingerer.  The precise aetiological testing carried out by Dr Savundra was able to confirm that there was evidence of a peripheral vestibular lesion and Dr Yeoh, instructed on behalf of the defendant, later agreed that the claimant had sustained such an injury in the accident.  While I accept that it is undesirable that new medical issues should be raised late in the history of a case and that further medical experts should be instructed shortly before trial I cannot see that in the circumstances of this case the way in which this matter developed should sound in costs.
18.	A further matter of complaint by the defence is the claimant’s late reliance on car crash DVDs to which her forensic collision investigator, Mr Brian Henderson, referred in evidence.  The defence point out that these DVDs had been available at the time Mr Henderson reported and at the time a joint report was prepared and that there is no explanation for the late disclosure.  Mr Mullins states in his witness statement (paragraph 34):
“It is a matter of speculation whether such evidence would or could have assisted in narrowing the issues between the respective experts.”
19.	It is not necessary to speculate to answer this question.  The DVDs were served late and that may well be a justified criticism but they were served almost two weeks before the defendant’s forensic collision investigator gave evidence. He had ample time to review them and did so. They did not narrow the issues.  In relation to late service of evidence I note, as stated in paragraph 37 of the main judgment, that only days before the trial was due to start the defence took a 20 page witness statement from Belinda Regan to which were attached approximately 200 pages of exhibits and which was then served upon the claimant. 
20.	A further complaint against the claimant is that she failed to make proper disclosure.  Amongst the documents that she is said not to have disclosed are the insurance files, the Nursing and Midwifery Council Registration documents, her diary entries and the file relating to the disciplinary hearing.  The point made by the defence is that the claimant failed to disclose documents which adversely affected her case.  It is, however, right to say that the claimant provided the defence with 17 separate signed mandates giving access to documentation which covered virtually every aspect of her life.  No restriction was placed on that access.  In part, I considered these matters in paragraph 41 of the main judgment and expressed my conclusion in relation to at least one aspect in the last sentence of that paragraph.
21.	The defendant’s complaints about non-disclosure are matched by those of the claimant.  Two of the matters upon which the claimant relies in order to base her claim for an order for costs on the indemnity basis relate to allegations of non-disclosure.  The first relates to documents which the defence had obtained in the Ace Insurance file which had been released to the defence as the result of a mandate signed by the claimant.  Although the Ace Insurance file was listed in the defendant’s list of documents dated 26th February 2006 the claimant did not seek inspection of that file and was unaware that it contained two documents of potential relevance.  The first was a letter which stated that the insurance ombudsman had upheld a complaint made by the claimant and the second was a letter from Mr Hamlyn dated August 2003 referred to in paragraph 48 of the main judgment.  These documents were not put in the trial bundles.  The claimant was not aware of them at the start of the case and it is said that the defence acted unfairly in not putting them in the trial bundles and had these documents been included in the bundles they would have diluted two strands of the defendant’s cross-examination.  
22.	The second matter of disclosure relates to the defendant’s not sending to Professor Dolan a copy of the Knappett Report on the state of the claimant’s car when he was asked to report on this case.  I have been taken to the correspondence which passed between the claimant and the defence on this matter.  The claimant complained that Professor Dolan was not being given all relevant information about the circumstances of the collision.  The defence response was unsatisfactory and varied between asserting that all information had been given to Professor Dolan and failing to answer letters.
23.	Partly in answer to this complaint and partly as a further general criticism of the claimant and justification for seeking a reduction in the costs they should pay, the defence lists those experts who reported on behalf of the claimant and who were not sent by the claimant’s solicitor every other report which might have been relevant to the opinion being sought.  For example, Mr Mullins points out that Mr Price’s initial report was prepared without sight of the accident and emergency records or the ambulance records; Miss Levett’s report of July 2007 was prepared having considered the report of Mr Henderson but not the report of Mr Marshall which had been disclosed 3 months earlier.  Mr Dickinson responds that on occasions he did not have available to him when he instructed an expert the document referred to, for example, the ambulance log when he instructed Mr Price and on other occasions there may have been an oversight – such as not sending Mr Marshall’s report to Miss Levett.  
24.	There are undoubtedly aspects of disclosure in this case that were unsatisfactory and it is difficult to see why letters from one side to the other went unanswered in relation to precise points which not only merited a precise answer but to which answers must have been available.  Mr Platt in argument suggested that the claimant’s solicitor engaged in what he referred to as “oppressive correspondence” – oppressive due to the large number of letters written.  I have not seen the full file of correspondence and am unable to come to any conclusion on this general allegation.  However, the letters written on this topic were focussed and merited a better response than some of them received. A detailed enquiry into the minutia of disclosure at this stage is unfruitful and unjustified.  There is nothing before me to indicate that any defects in disclosure arose from any intention to mislead or misrepresent and there is no evidence that any failure of disclosure which may have occurred significantly extended the length of this trial.  None of these matters should sound in costs.
25.	The defence also complain about the claimant’s attitude to the surveillance evidence which the defence produced.  Mr Mullins takes exception to the fact that Mr Dickinson asked to view the original surveillance tapes and having spent an afternoon viewing them the Claimant made “no challenge at trial to the integrity of the surveillance evidence.  It is such demands and conduct that both raise temperature and more importantly, increases costs” (paragraph 38 of Mr Mullins statement).   I find this a surprising criticism given the history of the surveillance evidence which is set out in paragraphs 66 – 71 of Mr Dickinson’s second statement.  I do not intend to set it out at length in this ruling.  Suffice it to say that initial requests for disclosure of the surveillance evidence which had been first mentioned in a disclosed medico-legal report were ignored.  When disclosure was made it was only edited footage which was disclosed and no witness statements or surveillance logs were served with the edited footage.  Letters sent to the defence querying the editing of the footage received no response and ultimately a Part 18 request relating to the surveillance was served on the defendant on 21st December 2007.  The response to that request was unsatisfactory and ultimately Master Rose made an order that the original master tapes be made available for inspection.  The editing of the surveillance films was remarkable in that passages which were potentially of some relevance because the claimant had been noted to have veered to the right on a number of occasions whilst walking were not included in the edited versions served on the claimant.  In my judgment the claimant was wholly justified in seeking to obtain further information about the surveillance and in spending time checking the integrity of the surveillance evidence.
26.	I referred in paragraphs 10 and 130 of the main judgment to the tensions which existed between Professor Dolan and Miss Levett.  Those tensions appear to be on a professional and personal level and to arise out of earlier cases in which these two experts have been instructed.  It is no doubt an oversimplification of the situation to say that the tensions arose because Professor Dolan is of the view that Miss Levett is not qualified to diagnose brain injury because she has no medical qualifications and that he is not, therefore, prepared to discuss such matters with her.  However, that is certainly an element which is at the heart of the matter.  The claimant in this case unsuccessfully raised before the Master the appropriateness of the defence instructing Professor Dolan in this case in the light of events which occurred in an earlier case.  Mr Mullins refers to this in terms of “an extraordinary personal attack on Professor Dolan” which he says is “untenable”.  The claimant on the other hand suggests that the defence encouraged Professor Dolan not to engage with Miss Levett in a joint discussion process and that they used Professor Dolan’s “tactics” to gain an unfair advantage and to try to shut out Miss Levett from the brain injury debate.
27.	The claimant’s application before the Master relating to the desirability of instructing Professor Dolan was unusual but not “untenable”.  Had it been so, no doubt the Master would have made an appropriate order relating to the costs of that application.  Seeking to use that application at this time as part of the argument for the order relating to costs that the defence seek is unsustainable.
28.	The Dolan/Levett situation was a very unhappy part of this case and one which in different circumstances might merit closer investigation with a view to deciding whether Professor Dolan’s attitude to joint discussions with Miss Levett had added to the costs of the case.  However, I am satisfied that this is not the case in which to carry out such an investigation.  It was, in my view, inevitable, because of the many unusual circumstance which existed in this case, that this claim would be fully contested to trial and that a joint discussion would not have noticeably narrowed the issues between these witnesses.  I am far from persuaded that the tensions to which I have referred prolonged the case before me.
29.	Mr Mullins in his statement rejects the “high temperature” description of this case.  However, in the course of his witness statement he makes comments such as “Mr Dickinson’s criticism of the defendant in an attempt to secure an order for indemnity costs does him no credit” and “I am disappointed, but not entirely surprised, that the claimant’s solicitors, Mr Dickinson, is now launching an attack on the defendant in an effort to secure an indemnity costs order”.  Such statements are illustrative of the ill feeling that has pervaded certain parts of this case and do nothing to dispel the view that the litigation was indeed “high temperature”.  Initially the defence were content to submit to an order for costs on the standard basis and it was only after the claimant sought costs on the indemnity basis that Mr Mullins proposed limiting the claimant’s costs to 60%, a figure which has never been the subject of any arithmetical justification.  I am left with the feeling that the argument for reducing the claimant’s costs in the way suggested by the defence is no more than a tactic to counter the claimant’s arguments for costs on the indemnity basis.  
30.	For the reasons I have explained I see no justification for reducing the claimant’s costs and the claimant will be entitled to her costs against the defendant.  The only remaining issue is whether all or part of those costs should be on the indemnity basis.
The claimant’ submissions
31.	I have already dealt with some of the matters upon which the claimant relies to justify an order for indemnity costs.  These are the alleged failure to deal appropriately with documents from the Ace file, to disclose the Knappett Report to Professor Dolan and what the claimant regards as the defendant’s failure to instruct Professor Dolan to engage with Miss Levett.  None of these matters, for the reasons which I have explained, take this case out of the norm.
32.	In paragraph 9 of the main judgment I referred to the fact that at an early stage of the case comments were made about similarities between the content of statements taken on behalf of the claimant from lay witnesses.  The comments originated in a report from Dr Iddon who stated:
“I read the statements with growing disquiet at how uncannily similar they are, appearing to follow the same formula, even summarising symptoms in virtually the same order and using virtually the same terminology, as though they had been presented as a list to each person.”
33.	Mr Dickinson, not unnaturally, took a dim view of these comments and filed a statement explaining how he had properly taken statements from the lay witnesses.  Mr Dickinson would have been prepared to have gone into the witness box and submit himself to cross-examination had the suggestions adumbrated by Dr Iddon been persisted in.  However, although Mr Platt on behalf of the defendant, questioned some of the early lay witnesses about the way certain words were used in their statements there was no suggestion made during the course of the case that Mr Dickinson had acted in any way improperly.  While I understand Mr Dickinson’s concerns I cannot conclude that Dr Iddon’s suggestions and the way some lay witnesses were cross-examined could justify regarding this case as “outside the norm” so as to justify an order for indemnity costs.
34.	There remain the issues surrounding Dr Gross and Mr Hay without which Mr Grant frankly concedes an application for indemnity costs would not have been made.  Both these doctors, in their conduct as expert witnesses, justify in the claimant’s submission an order for indemnity costs.  Each was the subject of severe criticism in the main judgment.  Their conduct and the way they addressed their duties as expert witnesses fell well below what can properly be expected from expert witnesses and in my judgment can certainly be described as falling “outside the norm”.  It is not a question of the evidence of other witnesses being preferred to the evidence of these two doctors or of their merely performing poorly as witnesses during the case.  Nor is my assessment of them based on hindsight.  The sad fact is that these two doctors did not address their responsibilities or conduct themselves properly as expert witnesses.  
35.	In paragraph 7 of the main judgment I set out the way the defence put their case as follows:
“The defence case is that the claimant is deliberately exaggerating her symptoms in a determined attempt to secure her financial future and to avoid returning to her pre-accident work which at the time of the accident was causing her unhappiness.  Alternatively, it is contended that the claimant has come to believe her own exaggerated account of her symptomology.”
36.	These two doctors supported that case and they gave strong evidence as to the lack of integrity in the claimant’s case.  However, in reaching the views they expressed they did not exercise the care which it was incumbent upon them to exercise and their approach to their duties was inadequately controlled and reality tested.   
37.	I have considered whether the Gross/Hay issues are such that an order for indemnity costs should be made for the case as a whole.  I have come, not without hesitation, to the conclusion that the justice of the case can be met by an order that the claimant’s remaining costs of the case be paid by the defendant but the claimant’s costs attributable to dealing with the evidence of Dr Gross and Mr Hay be assessed on the indemnity basis.  It is not practicable to make this order in terms of payment of a fixed sum or a proportion of the overall costs.