HHJ Wood QC, Liverpool CC, 8th July 2015

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Here the court considered whether to impose a costs sanction where the Claimant had acted unreasonably in issuing proceedings.  

The Claimant had sent the Defendant their medical report, waited 21 days, then having not received a satisfactory offer from the Defendant, they issued proceedings. As it happens the Defendant had sent an offer, but the Claimant had not received it. The Claimant relied on the fact they had complied with the Protocol by waiting 21 days from sending the medical report to issuing proceedings, as has happened here. However, on appeal at [12], HHJ Wood QC said:

• “So I ask the question has the Claimant, even if strictly permitted so to do, acted unreasonably by embarking on a course which is wholly disproportionate to the value of the claim and the relief sought?”

(My emphasis.) At [15] HHJ Wood QC said that the PI Protocol was to promote early resolution and to avoid the escalation of disproportionate costs, and attention should be drawn to para 2.16 (now 9.1.1) which emphasised that litigation should be a last resort.  

At [23] HHJ Wood QC said:

• “If litigation was to be conducted on the basis, ‘Ah you’re too late now. Tough. You’re just going to have to pay the consequences,’ then the system, which is predicated upon a degree of cooperation as exemplified in the Protocol, would break down. There must be more flexibility in the system than that…”.

The court concluded at [24] that it was:

• “… insufficient in my judgment, for the Claimant to rely solely upon the fact, this fact, to justify this proportionately expensive course of action. It cannot in my judgment, be assumed that entitlement to assessed costs is absolute if the issue ball starts rolling at one-minute past midnight.”

(My emphases). And at [25]:

• “… it should not be assumed that a legitimate Protocol issue automatically entitles a party to its costs without regard to the background… the entitlement is not absolute in the context of a requirement to act proportionately in the circumstances.”