Costs News

01 October 2015
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Breach of pre-action protocol alone “justified costs order”

A breach of the pre-action protocol (PAP) for personal injury did, on its own, justify an order for costs in favour of a claimant who had to apply to the court for pre-action disclosure, a circuit judge has ruled.

According to a report from Manchester personal injury firm Express Solicitors, the case of Sharma v Cropz of London concerned an adverse reaction suffered by the claimant when she underwent a procedure known as threading at a London beauty salon.

The defendant did not reply to the letter of claim, leading the claimant to apply for pre-action disclosure. District Judge Iyer in Manchester ordered the defendant to disclose the relevant documentation or a disclosure statement within 14 days.

On the basis that the application was successful, the claimant sought the costs of the application pursuant to rule 46.1(3). The report recounted how DJ Iyer did not feel that a breach of the PAP on its own was sufficient to justify this, and so made no order as to costs. He suggested that the claimant’s costs of the application could be recovered as disbursements in any subsequent claim.

The claimant appealed on the basis that DJ Iyer placed too much emphasis on rule 46.1(2) and not enough on rule 46.1(3), gave insufficient weight to the PAPs, failed to attach any adequate weight to the unreasonable conduct of the defendant, and wrongly understood that the costs of the application and the costs of the respondent complying with the order would be recoverable as a disbursement.

The claimant sought to rely on Sherred v Western Challenge Housing Association (unreported 13/10/2009), a case which Express said “was on all fours with this matter and had previously been heard in Manchester by HHJ Holman”.

HHJ Armitage allowed the appeal. He ruled that there was no other course of action the claimant could have taken when faced with an uncooperative defendant and that the only correct order was that it had to pay the claimant’s costs of the application.

Sarah Mawdsley (pictured), a partner in Express Solicitors’ occupier’s and public liability department, said: “The judgment emphasises the importance of the pre-action protocols, especially when faced with an uncooperative defendant. HHJ Holman’s reasoning in Sherrardwas adopted and HHJ Armitage stated that unless the claimant was going to take a chance on issuing, there was no option but to make an application, and costs should follow the event.”

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