A very detailed and considered decision of Costs Judge Jennifer James has appeared on Lawtel in the matter Helen Briggs & 598 Ors v First Choice Holidays & Flights Ltd (2016) and merits consideration in full; the highlights however are as follows:
As will be anticipated by the title this was a group action resulting from illness (of varying severity) on holiday.
Base costs were just under £2 million whilst the addition of additional liabilities increased the Defendants’ liability to a shade under £4.5 million – £3,000.00 base costs per claim.
A payment on account of costs was made in the sum of £1.8 million.
The total damages awarded were £1.7 million divided between the Claimants depending on severity of symptoms.
A number of preliminary issues had been raised by the Paying Party following service of the Claimants’ Bills (generic and individual).
The Defendants sought a sanction for the delay in commencing detailed assessment; the Notice of Commencement served was only a few days past the “3 months” specified by CPR r47.7, the Costs Judge considered the same minimal and not justifying any sanction, however the Defendants argued that the application for a detailed assessment had not been made until some 11 months after the order. There was dispute between the parties as to whether time had been extended by reason of attempts to settle; the Costs Judge considered that some delay was appropriate whilst attempts were made to settle the issue of costs but found that there was some unnecessary delay in the request and finding both sides equally at fault reduced the period for attracting interest by half.
The Defendants considered that the Claimants had acted unreasonably in not pursuing the claims of 152 Claimants who had not been taken ill (but had had their holidays ruined) via mediation run by ABTA – the Costs Judge agreed; the scheme covered non-personal injury claims of up to £25,000.00 per booking and would have adequately covered the 152 Claimants’ complaints at a cost of £40,000.00 rather than the £456,000.00 base costs claimed. The Costs Judge considered it was neither “reasonable nor proportionate” to incur such costs by pursuing those matters in the group litigation. The Costs Judge held that the maximum the Defendants should pay in respect of each claim was the maximum ABT “A” fee; considering the finding did not “infringe the sanctity of the agreed costs order”.
The Costs Judge considered costs were disproportionate on application of the pre-Jackson (1 April 2013) test as set out in CPR r44.4 (3). The Claimants had failed to keep costs to a reasonable and proportionate level; many of the Claimants belonged to family groups which ought to have resulted in savings on overlapping work; the robust defence did not constitute bad conduct and the Costs Judge considered that the sheer number of Claimants did not make the matter particularly complex; noting the Claimants Solicitors held themselves out as holiday claims experts.
The hourly rates sought were disputed – the Claimants claimed Partners at £255 and £265 the Defendants offered £220.00; Senior Paralegals/Paralegals claimed at £165.00 received an offer of £125.00; rates for Associate Solicitor and Costs Draftsman were accepted as claimed (no detail provided in the judgement). The Costs Judge allowed the rates sought but stated that the work undertaken would be scrutinised.
The success fees sought were in dispute – initially the Defendants sought the disallowance of the success fee on the ground that the Statement of Reasons provided was defective as it was not contemporaneous to which the Claimants responded by referring to CPR 47 at section 32.5(c) requiring the receiving party to submit EITHER a copy of the Risk Assessment OR a Statement of Reasons. The Costs Judge agreed the Claimant’s position that the Statement of Reasons was by definition not contemporaneous or why else not just file the Risk Assessment? The Costs Judge could not find that the Statement of Reasons being produced after the facts was, in itself, a flaw such as to remove the Claimants entitlement to a success fee. The Claimants sought 67% for matters settled within the pre action protocol period and 100% thereafter; the Defendants proposed 25% across the board on the basis that, “every claim was more or less bound to win something”. Regard was given to other Group Action claims judgements and applying her “years of experience” the Costs Judge allowed 67% for the first tranche of CFAs, it being not unreasonable for the Claimants to anticipate the claims would be fought, however the Costs Judge did not believe it was reasonable to set the “trigger” for an increase at 100% as at the end of the pre-action stage suggesting a reasonable “trigger” to have been 3 months before trial; the Costs Judge also had regard to offers made and accepted the Defendants’ submission that the risks had radically lowered and allowed 25% for the second tranche of CFAs.
The final issue was the request for a further payment on account; the Costs Judge did not feel comfortable awarding the further sum of £881,000.00 as sought by the Claimants and whilst not asserting the payment on account previously made in the sum of £1.8 million was the limit of the Claimants recovery the payment made was reasonable and no further payment was awarded.