Claimant's who don’t co-operate in advance of infant approval hearing face cost sanctions

A hearing I recently attended serves to remind us that where there is an infant approval hearing (IAH), the parties are expected to have at least attempted to deal with costs. This was a public liability claim where damages were agreed and listed for an infant approval hearing in Southampton County Court. In advance of the hearing we repeatedly asked the claimant’s solicitor for details of their costs so that we could try to agree them or so the judge could summarily assess them. The claimant refused, saying there was no point, because the approval might not be granted and because the claim was complex, having been ongoing for a number of years. I pointed out that because they had calculated the deduction from damages for their success fee they had clearly given costs some consideration and it was regular practice for parties to prepare schedules for hearings where costs might not be recovered.

At the hearing, following the damages figure being approved, I addressed the court on this issue, arguing that because costs weren’t capable of being dealt with, my client was being prejudiced and subject to additional expense by way of costs of assessment. The claimant argued that rarely would such costs go to assessment so there was likely to be no harm done; however, the judge agreed with my analysis and said she had expected to see cost details. She accepted my submissions and in her final order provided that there be no order for costs on any provisional or detailed assessment. Accordingly, our client’s position is protected and if the costs are not capable of agreement we can go to assessment at no risk.

There are a number of reasons why costs should be dealt with, or an attempt made, before an IAH so they can be summarily assessed, if not agreed:

• The Costs Practice Direction to CPR44.6 states at 9.2 that: “The general rule is that the court should make a summary assessment of the costs …. (b) at the conclusion of any other hearing, which has lasted not more than one day”
• The 2021 Guide To Summary Assessment confirms: “The court may carry out a summary assessment of the costs of a receiving party who is a child or protected party if the solicitor acting for the child or protected party has waived the right to further costs.”
• Many directions orders listing IAH make provision for costs to be dealt with, because detailed assessments are disproportionate
• It has also become standard practice that the court prefers to tie up all the loose ends of such claims when making its final order on them.

The majority of claimant solicitors do try to present their cost details; however, where they don’t, or behave unreasonably, we should not be afraid to make representations about future costs of assessment.

If you require any additional info please contact Paul Edwards.