Thomas Jones considers the decision in Page v RGC Restaurants Ltd  EWHC 2688 (QB)
Any budget that does not include all phases is not a 'budget' that complies with the rules. A claimant submitted a costs budget that did not include provision for trial preparation or trial. The Master found that the budget did not comply with CPR 3.13 and was therefore only entitled to applicable court fees. On appeal, Mr Justice Walker disapplied the sanction in respect of those parts of the budget which had been completed and agreed. He left in place the sanction in respect of the trial and trial preparation phases.
In June 2016, the Claimant was served a milkshake containing cashews by the defendants after informing them of his nut allergy. He developed brain damage. In July 2017, Master Thornett granted summary judgment in favour of the claimant on primary liability, leaving the issues of contributory negligence, causation and quantum to be determined. The claimant filed an interim costs budget which failed to deal with the trial and trial preparation phases. The parties agreed other phases up to and including a proposed second CCMC. It was filed in advance of the CCMC. Master Thornett found that in failing to file a complete budget, the claimant had failed to comply with CPR 3.13. As such, the budget was limited to applicable court fees only in accordance with CPR 3.14.
Grounds of Appeal
The claimant appealed on three principal grounds: First, CPR 3.14 did not apply in this case as the claimant had filed a costs budget. Therefore, the Master was wrong to hold that the claimant's budgeted costs were limited to court fees. Second, the defendant had agreed all phases except for trial and trial preparation. As such, the Master was obliged by CPR 3.15 to give effect to that agreement. As the parties had agreed that they would not be subject to budgeting until a later stage, the Master should have directed the parties to serve supplemental budgets. Third, even if CPR 3.14 did apply, the rule is subject to the court's power to 'order otherwise'. The Master was wrong not to 'order otherwise' and disapply the sanction having regard to the overriding objective and all the circumstances of the case.
Walker J did not accept the contention that only a total failure to file a budget engages the sanction under CPR 3.14. The claimant was required to set out his budgeted costs for trial preparation and for trial. A partially complete budget could not be construed as a budget within the meaning of the rules. The Judge did not accept that the negotiations between the parties resulted in a contract. As such, the sanction under CPR 3.14 was not displaced by the parties’ agreement. However, the Judge found that the Master had not considered whether the sanction will be imposed ‘unless the court otherwise orders’. Walker J disapplied the sanction in respect of those parts of the budget which had been completed and agreed. He left in place the sanction in respect of the trial and trial preparation phases.
The decision is particularly important in high value personal injury and clinical negligence cases where it is often difficult to predict how long the case will take and how much evidence is going to be required. Such cases give rise to a temptation to draw up a budget for time limited phases of the case and then ask the court to budget further at a second CCMC. This case demonstrates the risks inherent in this approach. Even where there is agreement between the parties in relation to certain heads of costs, this would not trump the requirements of CPR 3.14. Any budget that does not include all phases is not a ‘budget’ that complies with the rules.
The judgment is available here.
Article by Thomas Jones.