Posted: 23/03/2021
“No one told you when to run, you missed the starting gun… And you run and you run to catch up with the sun but it's sinking. Racing around to come up behind you again.”
Pink Floyd, ‘Time’ from ‘Dark Side of the Moon’, 1973
Warren Collins, partner at Penningtons Manches Cooper and lead solicitor for the claimant in the case of Masten v London Britannia Hotels [2020] EWHC B31 (Costs), explains how the lyrics of iconic rock tracks and life lessons from his paternal grandfather, Papa, have proved valuable in his practice as a claimant injury lawyer.
It seems that some of the most useful lessons from my life come from the lyrics of iconic classic rock tracks and from my paternal grandfather, an eastern European Jewish immigrant who ended up in New York and served in the US Army. I have vivid recollections of Papa teaching me those Yiddish words and phrases that were so spot on yet without an English equivalent. One such word is “kochleffel” - the literal meaning of which is “cooking ladle” but really means “one who stirs up trouble, a busy-body”.
The claimant was from the United States and, just like Papa, Ms Masten was ex-US Army. Her career was distinguished and she had served in some of the most war-torn places in the world. The accident occurred in London in June 2014.
Ms Masten was organising an international conference for the US Department of Defense and UK Government to discuss business regeneration in Afghanistan to be held at the Mayfair Millennium Hotel, owned and operated by the defendants.
On the morning of the accident, she went to sit at the desk in her hotel room to work on her laptop. That is her last memory before the accident. The chair leg collapsed and she struck her head on the desk. She lost consciousness and when she came round, she called for help. An ambulance was called and she was taken to a nearby hospital.
Life was never the same again for the claimant. She displayed all the classic symptoms of a head injury. Her memory was awful and there was major cognitive and executive dysfunction. This high functioning and efficient business woman was found by police officers and others on numerous occasions wandering the streets in the middle of the night not knowing where she was.
She zig-zagged between being unable to function due to severe headaches to being unable to function as a consequence of the side-effects of the headache medication prescribed by her treating neurologist. It was hardly surprising that the claimant’s thriving business as an independent consultant to numerous US government, security and military agencies collapsed. My visit to the claimant at her home in the Washington DC area, one very cold and snowy day, was one of the most important parts of my investigations. The chaos and mess in her home was completely at odds with what one may expect from a successful business woman let alone a decorated military person. The sticky notes on her kitchen cabinets labelling food, plates and cups signified a serious memory problem. This was clearly a woman who needed help.
Despite the self-proclaimed knowledge of the handling of this claim by the costs lawyers this was not a straightforward personal injury case.
While liability was admitted at an early stage, medical causation was in dispute throughout. In other words, “we admit we caused the accident…but not any of your losses”, sounding more like the “non-apology” responses given by politicians when they have been caught out. This in itself necessitated the instruction of experts in neurology, neuro-psychology, neuro-psychiatry and, following specialist Diffuse Tensor Imaging (DTI) scanning in New York, neuro-radiology.
While medicine may be global, medico-legal reporting requirements are certainly not. Experts in the USA had to be educated in the finer details of Part 35 CPR so that their reports would be court-compliant.
The joint discussions stage was an anathema for experts on both sides and required detailed guidance from both parties’ solicitors. Expert witnesses and the necessary neuroscience investigations they recommended are far more costly in the USA than in the English jurisdiction - a matter of which the costs commentators appeared to be completely unaware.
To be fair, the defendants did not help themselves on costs from the outset. The case had come to Penningtons Manches Cooper as the result of a referral from the claimant’s US lawyers in Philadelphia, where she had been living at the time of the accident.
While it is absolutely essential for a solicitor handling a brain injury case to meet his client - and the experts in due course, where their expert opinion is in issue - up until the issue of proceedings, we had relied extensively on the referring lawyer in Philadelphia for litigation support.
The defendants’ approach at the Costs and Case Management Conference (CCMC) was to suggest that there was no need for any involvement of a US lawyer in this case. Their attempts to cut out the US lawyer from the claim found favour with the Master at the CCMC and no further US attorney fees were allowed in the budget. Directions were made for disclosure and witness statements.
Given that the claimant could not even find the coffee cups in her kitchen, the prospect of her providing business accounts, ledgers, diaries, IRS tax returns and the like, as well as preparing lay witness statements, was a challenge that necessitated my second stateside trip.
This was a case where every aspect of quantum was in dispute. Opposing experts could not agree on causation, attribution or causation. While the claimant was clearly in a very different place financially, her inability to find and provide documentary evidence as a consequence of her new-found chaos was a real challenge. Negotiation by settlement is not unusual but taking instructions from a client who has capacity to litigate but whose mind sometimes wanders makes every aspect of the case a challenge.
The defendants agreed to a joint settlement meeting (JSM) but, as the prospect of the claimant making a visit to her local supermarket filled her with dread, her making it to London was simply not viable. The claimant needed support at the JSM. As our suggested settlement meeting in the United States was rejected, we proceeded in London but with the claimant being supported in Washington DC.
There was so much in dispute that the first settlement meeting did not result in a compromise. Medical causation remained in dispute. We bolstered the medical evidence with the opinion of one of the United States’ leading professors in neuro-radiology. The defendants agreed to meet again and, after a day of negotiations, we compromised the claim. Both sides made major concessions. The agreement was that the defendants would pay damages and costs on the standard basis.
No one would argue that the costs of this claim were high. As already explained, even if this case was wholly limited to UK jurisdiction, there were complexities which increased costs. Add to that the challenges of the claimant and most of the experts being stateside, not to mention the court cutting out the budget for local litigation support.
There was a need to gather and understand US-based documentary evidence such as employment records from various US governmental and military agencies, lay witnesses (some of whom were sensitive to security issues) and experts. Then add the complexities of the US taxation treatment of damages in different scenarios and navigating the US healthcare system.
A bill was prepared and served on the defendants. Costs lawyers went on the record for them. They requested an extension of time for serving points of dispute and we agreed. They then requested a further extension of time and we agreed again. That second time limit expired. This was all before the Covid-19 pandemic. No points of dispute were received.
Upon expiry of the second agreed extension, we told the defendants that we were applying for a Default Costs Certificate (DCC). Still nothing. At that point, we expected service of points of dispute but instead there was only the sound of silence.
A DCC in the sum of £363,695 was issued by the Senior Courts Costs Office on 16 June 2020 at which point we expected an immediate application to set aside the certificate. In actual fact, the application was not e-filed with the court until 26 August 2020 (the defendants' costs lawyer having erroneously attempted to file a hard copy with the court in mid-July 2020, and still a month after the DCC was issued).
The application was accompanied by a witness statement from the defendants’ costs lawyer explaining a catalogue of disasters but principally the delay was caused by the file being allocated to a colleague and not being picked up and (rather ironically) the costs lawyers dealing with a quality audit.
The defendants’ application to set aside the DCC was heard by Master Leonard in the Senior Courts Costs Office in October 2020. Reserved judgment was handed down in December 2020.
The court observed that, in considering the application, it must “give effect to the overriding objective at CPR 1.1, which requires that cases be dealt with justly and at proportionate cost. That expressly, includes ensuring that cases are dealt with expeditiously and fairly, and enforcing compliance with rules, practice directions and orders.”
It also noted that “It is accepted that the Defendant’s default was serious and significant, nor does the Defendant attempt to argue that there was good reason for it. The remaining question is whether it would be just, bearing in mind all the circumstances of the case, to set the DCC aside.”
The court felt it appropriate to comment on the impact of the Covid-19 pandemic but Master Leonard expressly dealt with this in his judgment: “What troubles me about this particular case is that, between mid-February and mid-March 2020 when lockdown started, it was allowed to drift into default without any effective action being taken either to avoid default or to remedy it at the earliest possible time.”
It went on to observe: “It is not an answer to that to say that the Claimant will be compensated by receiving interest on the unpaid part of her costs. She should not be kept out of her money for any longer than is necessary and she is entitled to a hearing as soon as reasonably possible. A delay of over four months is not, in all the circumstances, acceptable given the prejudice to the Defendant and the need for the expeditious administration of justice.”
The defendants’ central argument was that if the matter proceeded to a detailed assessment, the claimant's costs would be reduced and therefore the DCC should be set aside. This argument was rejected by the court as it could be applied to every single case where a DCC had been issued.
The court went further than that and stated: “I appreciate that refusal to set aside will almost certainly result in the Claimant recovering more than would have been the case had there been a detailed assessment, but as I have observed that may not be decisive. One must look at all the circumstances. Both the failure to serve points of dispute within the agreed period and the subsequent mismanagement of the file were, by an objective standard, negligent.
The loss of the opportunity to challenge the bill is the result of that negligence. DCCs are often entered as a result of negligent omission, and that in itself need by no means be fatal to an application to set aside, but in my view there are cases in which the application of the overriding objective and the balance of fairness require that the consequences of negligence must be borne by the negligent party. This is one of them.”
I finish this commentary as I started. Follow the wise Pink Floyd lyrics of Time – don’t miss the starting gun - and Papa’s sage words to ignore the kochleffels.
About the author: Warren Collins is a solicitor-advocate and partner in the personal injury team at Penningtons Manches Cooper. He regularly represents US nationals injured in the UK and acts as co-counsel for UK nationals injured in the United States. He is a member of the Board of Governors of the American Association for Justice, a Fellow of the Pound Civil Justice Institute and the only UK solicitor member of the US-based National Trial Lawyers Top 100, the National Crime Victim Bar Association and the Melvin Belli (pre-eminent personal injury lawyers of the United States) Society.
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