BELTS AND BRACES ARE BEST
A recent case where perhaps the conducting Solicitor failed to see “the wood for the trees” when deciding not to file and serve a Budget prior to the CMC, landed the Claimant with an award of Court fees only on the Budget in a case listed for a five-day trial, with 5 experts on each side. An expensive decision indeed!
The rather peculiar circumstances arose in the case of Suriaya Jamadar v Bradford Teaching Hospitals NHS Foundation Trust. In a clinical negligence claim, the Trust had denied liability in their Defence and accordingly the Court sent the parties form N149C stating that due to the matter being a defended claim, it appeared to be suitable for allocation to the multi-track. However, the Trust then admitted liability and upon the Court being so advised, the N149C was revoked by a Judge at the time of entering judgment for the Claimant with damages to be assessed.
It is the revocation of the N149C which seems to have led the Claimant’s Solicitors into error, because on the strength of that they took the view that there was no longer any indication that this was to be a multi-track case and therefore a Budget was not required. The Trust submitted a Budget and chased the Claimant, but the Claimant did not provide one in return.
At the CMC, the District Judge, after giving directions for the five-day trial, noted the Claimant’s failure to comply pursuant to rule 3.13; found that the circumstances were factually so close to Mitchell v News Group Newspapers Ltd  EWCA Civ 1537) that he was bound to follow it and therefore made an Order pursuant to rule 3.14 that the recoverable costs would be confined to Court fees only.
An application to vary that order and/or have relief from sanctions was unsuccessful. On appeal to the Circuit Judge, it was found that the claim was self evidently a multi-track case. The Circuit Judge, not being prepared to follow the District Judge’s view that it was Mitchell that should be followed, applied the three-part test in Denton v TH White Ltd  EWCA Civ 906 and (significantly) found that there was a serious breach by the Claimant. The failure to provide a Budget would mean that if the Claimant’s costs were to be budgeted, there would have to be a further CMC using up precious time and resources of the Court. Further, the system was designed such that case management and budgeting should be dealt with at the same time and that would no longer be possible. The Circuit Judge strongly rejected the Claimant’s reasoning behind the breach, finding it was absolutely obvious that this was a multi-track matter and that the matter had been listed for a CMC for the purpose of case management and budgeting.
The Claimant appealed yet further, submitting that the Circuit Judge had been in error and that the effect of the Order revoking form N149C was that the case stopped being in the multi-track and therefore there was no requirement to serve a Budget. In the alternative, the refusal to grant relief was wrong.
The Court of Appeal rejected the Claimant’s arguments and found that the Circuit Judge’s approach had been correct. That Court appreciated that some other Judges may indeed have been more lenient towards the Claimant in the circumstances, but the Circuit Judge’s decision had been one which it was open to him to make and there had been a proper application of the Denton principles. In those circumstances, it was not appropriate to change the decision which had been made.
So what can be taken from this rather sorry case? “Better to be safe than sorry” would be our primary thought. The consequences for falling foul of rule 3.13 are simply too great for any chance to be taken so far as that is concerned. In a case which clearly bore the hallmarks of the multi-track (and this was not even close to being a borderline case) it should have been obvious that it was a case which would require budgeting. The parties are of course under a duty to consider whether a budget is required (PD3E-para 3). It is of course unfortunate that the notice of proposed allocation was revoked which clearly gave the Claimant’s Solicitor the misleading impression that allocation to the multi-track was not to be undertaken, but if there had been any doubt then either this should have been the subject of an enquiry to the Court, or, a Budget should have been prepared in any event. Even if it had transpired that a Budget would not be required for the 1st CMC, clearly would be required at some point in such a matter.
The Claimant’s Solicitor was perhaps doubly unlucky in that having been misled by the revocation, he then came up against both a District Judge and Circuit Judge who were not predisposed to clemency. Whilst, as the Court of Appeal noted, many other Circuit Judges may well have been inclined to be a little more understanding, this is simply something which cannot be counted upon and any party should be anxious to ensure that their position is fully protected at any CMC.