TUI UK Ltd v Tickell & Ors [2016] EWHC 2741 (QB)

Case No QB/2016/0035[2016] EWHC 2741 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/11/2016
Before
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBESITTING WITH MASTER LEONARD AS ASSESSOR
Between
TUI UK LTDDefendantTICKELL & OTHERSClaimants
Mr Joshua Munro (instructed by Miles Fanning) for DefendantMr Roger Mallalieu (instructed by Irwin Mitchell) for ClaimantsHearing Hearing dates: 17 October 2016
JudgmentMrs Justice Elisabeth Laing DBE:Introduction
[1]This is an appeal from decision of Master Howarth (‘the Master’) made on detailed assessment in December 2015. Leave to appeal was refused by Soole J on the papers on 31 March 2016, but granted by Slade J on 14 July 2016 on amended grounds of appeal.[2]I will refer to the parties as they were below. References to page numbers (whether of transcripts or bills) are to the numbering of the appeal bundle. The Defendant was represented by Mr Munro and the Claimants by Mr Mallalieu. I am grateful to both counsel for their written and oral submissions. I note that Mr Munro made many submissions in his skeleton argument which were not confined to the grounds of appeal which he had leave to argue. I also note that he did not refer to any of them in his oral argument.[3]The underlying claim by 205 Claimants concerned a cruise on MV Thomson Dream. Many Claimants were ill and all had holidays which were not of the quality they had paid for. Particulars of claim were issued on 21 December 2011. On 23 May 2012, a detailed order was made with a view to reducing costs. This provided, among other things, for each party to nominate eight representative claimants as lead claimants. The order also provided for standard disclosure to be made on liability (limited to those 16 claimants), on causation and on quantum.[4]The claims were settled shortly before trial in February 2014. 116 Claimants settled for 60% of the value of their holidays (on average, £500). 57 Claimants who suffered relatively minor illness settled for damages of less than £1500, on average, for £700. 32 Claimants, who had been more seriously ill, settled for more than £1500. The Defendant denied liability throughout.[5]The Defendant did not respond to the pre-action protocol letter or to a letter from the Claimants offering to engage in ADR. I have seen neither letter. Mr Munro submitted that there were various defects in both letters. I cannot say whether there were, or were not. But even if there were, the Defendant could have responded to them pointing out any defects, and/or asking for further information. The point is that the Defendant did not. So whether or not those letters were insufficient in any respect does not, in my judgment, help the Defendant.[6]The hearing before the Master was conducted in two tranches. The Claimants’ solicitor lodged all the files for the 205 Claimants. The Master dealt with some preliminary issues in January 2015. He decided then that the costs were disproportionate. The hearing continued in December 2015. In all, it took eight days, including reading days. The Master had detailed points of dispute before him and detailed bills of costs: one generic bill and 2015 individual bills. By December, the parties had agreed that the Master should consider 24 files. Well before the hearing, the Claimants’ solicitors provided the Master, from those files, with the attendance notes which related to the points in dispute. In the course of the hearing he was taken through the items identified in the points of dispute.[7]The total costs claimed were £1,768,011.25. The Master allowed costs of £999,121.36. The Master assessed the costs in two stages. He assessed the generic bill at £365,580. There is no appeal against that. But the Defendant contends that following assessment of the individual bills the overall base costs which the Master allowed - £630,456 – are too high. The Defendant submits that that represents some 80% of the total base costs claimed and that 60-70% rather than about 80% would be the norm.[8]The agreed method for assessing the individual bills was that the parties each chose a representative ‘sample’ claimant from three groups of claimant. Those were the claimants who made what were called ‘quality only’ claims, those who had suffered from upset stomachs, and those who had suffered more serious illness. The Master then did a detailed assessment of two bills from each group. The parties added together the amount of the two bills he had assessed, divided that amount by two and multiplied the result by the number of claimants in each group. The result was the amount he assessed for each group of claimants.[9]This was a rough and ready approach, but the parties agreed that it was a sensible and proportionate alternative to an assessment, by reference to the points of dispute, of each of the 205 individual bills of costs. It was an approach which inevitably created a risk of distortion, because if one of the bills for a sample claimant contained an item which was untypical for the group of claimants of represented by that sample claimant, and the Master allowed that item, that untypical item would inevitably feed through to the figure for the total costs, as it would be part of total which fed into the calculations. The same is true, mutatis mutandis, of a typical item disallowed by the Master. But this was a risk which, by agreeing this sampling method, the parties had agreed to run.[10]The Defendant contends, in broad terms, that in assessing the individual bills of costs, the Master did not give effect to his decision in January 2015 that the costs were disproportionate. That finding required him to consider in his assessment whether the costs were reasonable and necessary. It is clear from several references to that test in the transcript that the Master knew full well that that was the test he had to apply, but Mr Munro for the Defendant nonetheless argues that the Master failed to apply this approach in substance.

The legal approach

[11]I should say something, first, about the correct general approach, first to cases where there is a finding that costs are disproportionate, and second, to an appeal of this type.

Where there is a finding that costs are disproportionate

[12]The pre-1 April 2013 test of proportionality which Lord Woolf MR set out in Lownds v Home Office [2002] EWCA Civ 365 applies in this case. He said:
“…There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which CPR r 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test then all that is normally required is that each item should have been reasonably incurred and the cost for that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court will want to be satisfied that the work in relation to each item was necessary....”
[13]In this case the Master made a global finding that the Claimants’ costs were disproportionate. Then, in accordance with Lownds, he then applied a test of necessity to the items of costs challenged by the Defendant (see also paragraph 52 of Motto v Trafigura [2011] EWCA Civ 1150, per Lord Neuberger MR). One of the Defendant’s key contentions appears to be that the Master did not apply the necessity test with sufficient rigour. I should therefore consider what Lord Woolf MR said about necessity in Lownds:
“… a sensible standard of necessity has to be adopted. This is a standard which takes fully into account the need to make allowances for the different judgments which those responsible for litigation can sensibly come to as to what is required. While the threshold required to meet necessity is higher than that of reasonableness, it is still a standard that a competent practitioner should be able to achieve without undue difficulty.”
[14]In Motto Lord Neuberger MR said (at paragraph 52):
“It does not seem to us to be a profitable or useful exercise for this court to describe in abstract the difference between assessing whether an item has been necessarily incurred and assessing whether an item has been reasonably incurred, save to confirm that the former hurdle is higher, but it does not carry with it the strictest sense of necessity.”
[15]These authorities do not support the Defendant’s proposition that one can identify a ‘benchmark’ of appropriate overall reduction, on the basis of necessity, by a given percentage of the costs claimed. The extent to which claimed base costs will be reduced will depend upon the facts of the particular case.

The approach to appeals on costs

[16]I have reminded myself of the test I should apply by referring to a summary of the principles governing appeals on amounts of costs in Friston on Costs (2nd edition paragraphs 23.16 and 23.17):
“...appeals concerning the amount of costs are… notoriously challenging from the appellant’s point of view”
. The learned author refers to the observations of Lord Fraser in G v G (Minors: custody appeal) [1985] 1WLR 647 at 652. He distinguishes between “blatant error”, which may be corrected on appeal, and the task of preferring one imperfect solution to an alternative imperfect solution preferred by the appellant; and to Buckley J’s distinction in Mealing-McLeod v Common Professional Examination Board [2000] 2 Costs LR 223 at 224 between matters of principle and matters of judgment. I consider that I should only interfere with the Master’s decision on points of detail if the Defendant persuades me that a given decision of the Master was plainly wrong and outside the wide ambit of his discretion. It would be outside that ambit if, for example, the Master took into account something which was irrelevant, or if he failed to take into account something which was relevant.

The grounds of appeal

[17]The general ground of appeal, as I have mentioned, is that the Master’s assessment of the individual bills was wrong because he was required to disallow unnecessary costs and failed to do so.[18]Ground 1 contends that the Master was wrong to allow 144 hours of inter-fee earner discussions, overall, on the individual bills. These were wrongly allowed because they did not relate to any individual case. Times had already been allowed in the generic bill. The discussions were unnecessary and probably did not even occur. The Master was wrong not to check the attendance notes about those discussions (transcript, page 491). He was wrong also to say (pages 492, 223, 224), that work was pushed down to the lowest grade of fee earner.[19]Ground 2 is that the Master failed to rule out unnecessary costs. Examples are then given from pages 433, 435, 248, 235, 233, and 452 of the transcript.[20]Ground 3 is that he failed to take into account properly or at all seven different matters. These are that i) the quality only claims settled for low figures, ii) their quantum was agreed in principle on 23 May 2012, iii) the quantum of 173 of the claims was agreed from the start on the basis of a set tariff, iv) 173 of the claims settled for less than £1500, v) there were available ADR processes, but the solicitors, in breach of their duties to their clients, did not advise the Claimants about them, vi) all the cases except the lead cases were parked by the order of 23 May 2012 so vii) there was no need for any substantial costs or any such costs post-23 May 2012 in respect of individual bills for non-lead Claimants with quality only or upset stomach claims.[21]Ground 4 is that the Master assessed one of the sample claims, the Bullen claim, on the basis that it was a lead claim when it was not. The assessment was wrong; ‘for instance, the costs of a witness statement should not have been allowed’.[22]I can deal with most of ground 3 immediately. It seems to me that, with one exception, ground 3 is another way of expressing ground 1. That impression is reinforced by the fact that Mr Munro, for the Defendant, did not press it in oral argument. It seems to me, therefore, that ground 3 adds nothing to ground 1 and that I can consider them together. The exception to this is ground 3.e, which I will consider after ground 1.

Inter-fee earner discussions

[23]There was a general point of dispute about this head of work. It was that no such discussions had been necessary, and that they all, therefore, should be disallowed. Because of the general nature of this objection, the Claimants’ solicitors did not include in the bundle of attendance notes which they prepared for the Master the attendance notes recording inter-fee earner discussions. The bills, in any event, had relatively full descriptions of the items of work claimed. 135 hours were claimed on the general bills and 205 on the individual bills. The Defendant eventually made, during the hearing, an offer of 104 hours. The Master allowed 95 hours of generic time and 144 hours on the individual bills; that is, slightly rounded up, 70% of the claim. By the time the Master made his ruling on this head of claim, the parties had agreed that the Master should deal with this head ‘on a broad brush basis’, applying the test of necessity. As the Master recorded, the alternative would have been to spend a day on this aspect of the bills.[24]The transcript of the hearing records that the parties and the Master discussed this topic more than once during the hearing (which, as I have said, lasted several days). In the first discussion, Mr Robbins, for the Defendant, said three times that he did not question whether the times spent on the discussions had actually been spent. He said that looking at the attendance notes would not add anything useful. He did not express any doubts about whether or not the work claimed had been done or not. He did question whether it was reasonable for the work to be done, but the Master said he would not let him amend his points of dispute to ‘chip a bit off here and chip a bit off there’. The Master found against the Defendant on the question whether or not this was a case in which inter-fee earner discussions were in principle justified. There was no way, in his view, if a case was mainly being conducted by a paralegal, that the case could be conducted without the involvement of some of the fee earners. The Master then said he would park this issue until 2 July, for a bundle of attendance notes to be prepared, both for the generic and for the 24 individual bills.[25]The issue was revisited the next day. Mr Mallalieu said the bundle would take some time to prepare but would be ready later in the week. Mr Mallalieu put forward a figure of 135 hours for the generic bill and Mr Robbins said he would take instructions on that. When the parties next returned to the issue, Mr Robbins told the Master that he and Mr Mallalieu had made an agreement. He referred to the Master’s concern about the costs of examining the attendance notes, and to the fact that the Master had dealt with the witness statements with a broad brush. He invited the Master to look at the generic bills and the six bills the parties had picked out, to get a feel for the discussions and ‘use your brush again to come to a figure…That way… we’ll avoid the time having to flesh out these attendance notes and it will avoid, obviously, court times in having to go through each item’. Mr Mallalieu said that the attendance notes were there, and could be pulled out at extra cost. While he would argue for all the times to be allowed, he accepted that it was proportionate and sensible to deal with it on a broad basis. The Master then agreed to park these items and return to them at the end. The Master said the easiest way to do this was to arrive at a percentage figure.[26]When the parties next returned to this issue, Mr Mallalieu submitted to the Master that most of the work on the files had been done by paralegals, and that qualified solicitors and partners had been involved sporadically. He referred to action plans and the fact that there had been proper delegation. On the generic bills 135 hours over 3 and a half years was about 38 hours a year (‘30 minutes a week’, as the Master interjected). The time was doubled up, because one person was talking to another. On the individual bills, it worked out at 40 minutes on average per Claimant per year. If these were to be reduced, it would be unfair to impose significant reductions for ‘something which was necessary to have this case run in the way in which it was run and to have the work done at the levels of fee earners that it has been done’.[27]In his ruling on this issue the Master recorded that he had been invited to deal with it with a broad brush. He had to bear in mind that he had already ruled that the costs were disproportionate and he had to apply the test of necessity, even on a broad brush basis. He had not seen the detailed attendance notes; but what was being discussed was perfectly clear from the bills. Having spent three days looking at the bills he said that it was quite clear to him that the vast majority of the work had been done by paralegals. It was unrealistic to say there should have been no inter-fee earner discussions. Quite clearly there had to be discussions between the relevant fee earners who were doing different jobs in the litigation. He accepted Mr Mallalieu’s submission that there had been a proper team approach. Where possible the work had been pushed down to the lowest grade of fee earner.[28]It was a well-run and well-documented piece of litigation, the Master continued. It was expensive, but litigation with 205 Claimants is expensive, despite the small sums at issue, because the case was disputed in the way it was. The Master’s conclusion, doing the best he could, and ‘…again emphasising that these costs to my mind were overall disproportionate, using the Lownds approach…’ was to make the allowance I have referred to above.[29]I reject Mr Munro’s submissions that(1) the ‘work’ the Master was referring to here was the inter-fee earner discussions, and that,(2) in this respect, the Master was wrong, as the vast majority of the inter-fee earner discussions billed did not involve paralegals. It is quite clear from the context and from the Master’s acceptance of Mr Mallalieu’s submissions that the Master was referring to the work on the case as a whole, and quite clear that he was right to say that that work had been done by the lowest level of fee earner possible.[30]I agree with the Master that, in principle, if, as here, much of the work on files was being done by paralegals under the supervision of legal executives, it was necessary, from time to time, to have discussions between fee earners, specifically supervising solicitors, including partners. In the course of this short ruling the Master referred twice, correctly, to the test he had to apply.[31]Mr Munro submitted that the Master was wrong not to look at the attendance notes, either, because he said that he would, or as a matter of principle. The first point is that, on the basis of the points of dispute, they were not in issue, as the Defendant simply resisted this head in principle. In any event, it is clear from the material I have already referred to that the parties had sensibly agreed that the Claimants did not need to go the expense of producing the attendance notes and taking the Master through them. The parties also agreed that the Master should deal with this topic with a broad brush. While the Master did initially say he would look at the attendance notes, the position had changed by the time he made his ruling on this topic. Further, in the light the detailed descriptions of the work done in the bills, of Mr Robbins’ repeated acceptance that the attendance notes would add nothing, I do not see how, even if the parties had not agreed that the Master did not have to consider the attendance notes, it can be said that the erred in any way by not looking at them. I dismiss this ground of appeal. ADR[32]The Defendant relied in the points of dispute on the fact that it was an ABTA bonded company. The Defendant contended that no costs or disbursements should be allowed on ‘the claims which settled for damages for personal injuries below £1000 and for breach of contract claims that settled below £5000.00’ as those Claimants could have used the ABTA mediation process. The Claimants’ response was that the Defendant had never invited the Claimants to do this. The fact that the Defendant denied liability throughout showed that mediation would have failed, and more costs would have been incurred. Moreover, the Defendant did not provide a decision on liability in the pre-action protocol period; the Claimants had offered to mediate in a letter dated 22 February 2011; and the Defendant had not responded to that suggestion.[33]There is one sample contract in the bundle. It occupies just over 7 pages of smallish print. Clause 5 is headed, ‘What happens to holiday complaints’. It says that the Defendant can usually sort out complaints but that if a passenger disagrees, he can take up the complaint with an arbitrator. The clause refers to the limits on the arbitrator’s jurisdiction. It says that there are ‘limits on the costs you might have to pay…’. It finishes, ‘If you prefer, you can take your complaint to the County Court or another suitable court’. So the contract does not impose an obligation to use the ABTA scheme. It leaves it up to the passenger to decide whether to use the scheme or to litigate in court.[34]I do not have a transcript of the January hearing. The Master decided then in principle that the costs were disproportionate. In the December hearing Mr Munro opened the ABTA topic. The Master asked whether they had not dealt with this topic in January. The parties then referred to their skeleton arguments. He said that he had a note that Mr Munro had referred to it on proportionality. Mr Mallalieu submitted that this point had been argued as relevant to proportionality but that it had been disavowed as freestanding point. The Master said it had been raised in the context of proportionality and it might have been one the factors which he had taken into account in deciding that the costs were disproportionate.[35]Mr Munro said that the point had not been abandoned and that it was a good point in relation to the quality only bills. The Master said it was a point which could be raised in relation to the reasonableness of any of the individual bills. Mr Munro said that that was the same point. The Master then said that he was not sure that he could deal with the issue as ‘a blanket approach’ such that he could say he would not award a penny for any of the claims, because ‘I was obviously against you when you raised that point in January, and what you are doing is raising exactly the same point again’. Mr Munro said he did not understand that a specific ruling had been made on the point, and, in any event, it did not have to be so stark, as there was a variety of options open to the Master. The Master said that as some of the claims were disputed, he was not sure the scheme would have helped. There was then an argument about whether or not the Defendant had agreed to settle the quality only claims at the first CMC in May 2102. Mr Mallalieu contended that the Defendant had offered to settle the quality only claims for £70,000, and that the Claimants had rejected that offer. The Master interjected that this dispute was only taking up court time. Mr Munro said ‘Well, if I cannot persuade you to make a ruling….’. The Master replied that he had already made a ruling. He had decided that the costs were disproportionate and that he was not going to be ‘bounced’ into deciding, either, that the Claimants should get no costs, or that their costs should be restricted to an arbitrary amount.[36]Mr Munro then withdrew from the hearing; Mr Robbins replaced him. Just before Mr Munro withdrew, Mr Mallalieu summarised, ‘for the benefit of the tape’, the Claimants’ answer to Mr Munro’s argument. The ABTA scheme was not remotely suitable, the Defendant never proposed it, the Claimants had proposed ADR and the Defendant did not take up that offer.[37]Mr Munro submitted to me that the Master was wrong to rule out his argument about ADR. It is difficult for me to evaluate this submission without the skeleton arguments for the January hearing, and without seeing the transcript of that hearing, because I do not know, either, exactly what Mr Munro argued, or what the Master decided in January. It is clear from the December transcript that Mr Mallalieu was submitting that Mr Munro had disavowed this argument in January and should not be allowed to raise it later, in December.[38]If I assume in Mr Munro’s favour that he was not precluded by his conduct during the January hearing from making this argument, I can see some force in his contention that the Master was wrong to rule out the argument Mr Munro attempted to raise in January. It seems to me that it could, on appropriate facts, be a distinct argument from the general argument that a failure to use ADR makes the costs as a whole disproportionate. It may be important, where there is more than one reason for a holding that the costs as a whole are disproportionate, for such an argument to be distinctly ruled on in a detailed assessment. I have been referred by Mr Munro to the decision of Master James in Briggs v First Choice Holidays and Flights Limited (case no: HQ11X02646). She held that 152 of the claimants in that case who had not used the ABTA scheme should be restricted to the costs of using the ABTA scheme and should not recover their base costs (some £456,000). I have not seen the skeleton arguments in that case, and know nothing about the underlying facts, other than that the ABTA scheme was referred to in those claimants’ contracts.[39]However, on the facts of this case, I consider that it would not have been open to the Master to hold (had he entertained the argument) that the quality only Claimants should, either, recover no costs at all, or be restricted to the costs of using the ABTA scheme. I consider that if a Defendant wishes to rely, at the stage of a detailed assessment, on the availability of an industry-specific ADR scheme, which is referred to in the relevant contract, but it is not binding, and is not expressed to oust the jurisdiction of the courts, the Defendant must make that clear in its pre-action protocol response. The Defendant did not do so here. The Defendant did not admit liability. The claims were robustly contested. Moreover, the Defendant did not respond to the Claimants’ offer of ADR. Had the Master concluded in this case that the Claimants should get no costs, or only recover the costs of using the ABTA scheme, such a conclusion, on these facts, would have been plainly wrong.[40]There was some dispute in the hearing before us whether Mr Mallalieu needed leave to put in a respondent’s notice to raise, before, us, the answer on the merits to Mr Munro’s argument based on ADR which I have considered in the above paragraph. I do not consider that I need to resolve this dispute, because I do not decide this ground of appeal on the basis of this reasoning. I decide it, instead, on the basis of the arguments set out in the amended grounds of appeal. The amended grounds of appeal represent the Defendant’s second attempt to define the issues for this appeal. They make no complaint that the Master erred by ruling out arguments on ADR which he should have considered. Rather, it complains that the Master ‘…failed to take into account properly or at all’ various factors, including that ‘…there were available ADR processes that should have been used, but the claimants were not advised about them, in breach of the solicitors’ duties to them’. It is clear to me from the transcript that the Master did take into account the availability of ADR both in making the finding of disproportionality and by indicating, in the course of the discussions to which I have referred, that he would bear it in mind in assessing the individual bills.[41]I make clear, nonetheless, that had it been necessary for me to consider the merits of the arguments on ADR, I would have had no hesitation in giving Mr Mallalieu leave to serve a respondent’s notice out of time in order to enable him to run those arguments. There would have been no injustice to the Defendant, as the outline of the arguments which I have accepted was described by Mr Mallalieu to the Master in the hearing (see above). The Defendant could not argue that it had been in any way taken by surprise by those points. It would have been, in my judgment, both futile and disproportionate to have acceded to Mr Munro’s invitation to remit these issues to the Master for him to consider them. I therefore dismiss this ground of appeal.

Ground 2: unnecessary costs?

[42]Ground 2 of the grounds of appeal contend, first, that the Master was wrong to allow, on page 186 of the bill, two items in the Oakes bill dated 5 August 2010 and 4 October 2010 as they duplicated each other. His ruling on page 433 of the transcript was wrong, it is said.[43]Before this item was reached one of the points made by Mr Robbins in relation to another item on 4 October 2010 was that time had already been allowed for this in the generic bill, but he accepted that ‘to an extent there may be some individual work to be apportioned, but… no more than six minutes.’ Mr Mallalieu referred the Master to the attendance notes. The Master said that he was at that moment, cross referring to the generic bill to see what was being done and what he had allowed for.[44]The next item was considering the limitation date. Mr Robbins said that this work had been claimed in the generic bill, was also covered on 5 August 2010, and the Defendant did not see the need for ‘this additional work’. Mr Mallalieu described the work by reference to the attendance note. The Master decided to allow it. I do not see that any issue of principle arises here. The Master looked at the attendance notes. It is clear from the passage in the transcript which I have just referred to that the Master had in his mind the allowances he had made in the generic bill. It is impossible for me to say that the Master was wrong to allow this item. I dismiss this ground of appeal.[45]The second point in ground 2 is that the Master was wrong to allow an item on 17 October 2010 ‘after ruling that it equated to a claim for 6 seconds’ work at page 435’. There are two linked answers to this point.[46]I have carefully read the relevant passage of the transcript. First, I do not consider that, properly construed, the transcript shows a finding that this piece of work took literally six seconds. The grounds of appeal refer to the transcript at page 435, but the only positive suggestion there to the effect that the task in hand would have taken six seconds is that of Mr Robbins, not the Master. Mr Mallalieu then explained what had to be done: the form had to be checked to see if anything had changed, and then entered on the system. The Master then said, ‘This is the problem with units of time, is it not? That is the problem. Six seconds equates to six minutes, does it not, really?’ Mr Mallalieu then described a further aspect of the checking the form, and the Master said he would allow it, but ‘…it is in the back of my head as to, if there are many more of these, to see where I am coming from’.[47]Two pages further on in the transcript, the Master was considering a single unit of paralegal time claimed for checking that there was authority to make a Part 36 offer. The Master said, ‘That is the problem. With great respect, I doubt that actually doing that work is going to take six minutes. It is looking, it is simply going back and looking at the form. Bearing in mind I allowed – I have got 6 minutes in the back of my head that was probably six seconds – I am going to disallow this item’.[48]I do not consider that the Master was wrong to consider matters in this way, nor that he made any finding to the effect that a given task took literally six seconds. He was making the obvious point that since the minimum unit for assessing costs is a six-minute unit, there is scope for a unit to be claimed when the underlying work has taken less, sometimes, significantly less, than six minutes to do. How long the two items to which he referred would take to do was a matter for his expert assessment, as was the trade-off between two items for which in theory two units could be claimed, but for which, in justice, he considered that it was appropriate to allow only one. I dismiss this ground of appeal.[49]The third point in ground 2 is that the Master was wrong to allow (transcript, page 483) an item on page 248 of the bill for work claimed on 22 February 2011 when there was no evidence that the work was necessary or had even been done. Two items were claimed for 22 February 2011; a 6-minute unit claimed for a paralegal to consider the present position of the claim in relation to quantum, noting the next steps needed, and preparing a file note (for the Whipday claim). The other was a similarly described 6-minute unit for a legal executive.[50]Mr Robbins said that the 22 February case management items were not agreed. He did not see the need for the work and it duplicated the work. The Master asked, ‘It is just a general review, is it not, really?’. Mr Mallalieu said that it was; there were two entries for the same day and he was prepared to concede one. The Master said he would allow one and disallow the second. Mr Robbins did not press for a different outcome. As Mr Mallalieu put it in his submissions to me, this is just another example of the ‘cut and thrust’ of a detailed assessment. I do not consider that the Master’s approach to this item raises any question of principle. Nor do I see in what way he was wrong, in the exercise of his specialist judgment, to allow one of these items and disallow the other.[51]The fourth point in ground 2 is that the Master was wrong to allow, on page 235 of the Walsh bill, an item claimed for 22 May 2012 when this duplicated an item on page 233. If he had a doubt about this item, he should have resolved that doubt in the Defendant’s favour.[52]The item for 11 March 2011 was 30 minutes for a paralegal to peruse the quantum documents, consider the heads to be claimed, valuing the claim for loss of the holiday and preparing a long letter to the Claimant about quantum and the Part 36 offer to be made. The Master allowed 18 minutes for this. The item for 22 May 2012 was 12 minutes claimed for a paralegal to consider the value of the claim for loss of a holiday, considering possible figures for settlement, preparing for a negotiation meeting with the Defendant and preparing a file note. The Master allowed this in full.[53]Mr Robbins said that this was not a difficult case. He reminded the Master that he had allowed 18 minutes for considering the value of the claim in March 2011. He said that because quantum in the case was straightforward, 18 minutes was enough, and the time in May 2012 was unnecessary. Mr Mallalieu submitted that the second item was over a year later, and the check was to see if anything more could be claimed for this claimant. The Master said, ‘I think I am happy with that 12 minutes’.[54]I consider that the Master’s use of the formula ‘I think’ is no basis for a submission that the Master had a doubt about this item. First, the meaning which a speaker intends to convey by that phrase very much depends on the tone in which it is said. The transcript does not help me with that. Second, Mr Robbins did not react by telling the Master that if he had a doubt he should resolve it in the Defendant’s favour. I have no doubt that if this experienced Master, who knew what test he had to apply, had had a doubt about this item, he would have(a) said so, and(b) disallowed it. I dismiss this ground of appeal.

Ground 4: Bullen

[55]Master Bullen was a minor. He was not one of the lead claimants. The transcript records the assessment of his bill of costs. There was no reference to his status as a lead claimant or otherwise at the beginning of the discussion of his bill. His was a quality only claim and Mr Mallalieu compared it with the similar claim by John-Joe Walsh, which they had considered that morning. The damages were £599 and the base costs claimed were £2307. There was a discussion of the items on the bill. Mr Robbins disputed some and conceded others. After the Master had dealt with several items, he reached the witness statement. Mr Robbins noted that this was a quality only claim only. He conceded that a witness statement was necessary, but questioned the amount of detail and the times taken.[56]The Master said that he had better take a look at the statement. Mr Robbins then revised his initial position and questioned whether a witness statement was needed at all. Mr Mallalieu then said that this was a case which was going to trial and that the court had required statements in all of those cases. Mr Robbins then queried whether this was a lead case. Mr Mallalieu said it was, and Mr Robbins said that those instructing him had said that it was not, but he was happy to take it from Mr Mallalieu that it was. In that case, he said, a statement was reasonable but he submitted that 30 minutes would be enough. Mr Mallalieu then said that it was a lead case, details were necessary and that took time. There was a limited number of cases where the solicitors were producing detailed statements. The Master said, having read the witness statement, he would allow two hours. There was further discussion of other items on the bill, and, again, Mr Robbins disputed some and conceded others.[57]In fact, Master Bullen was not a lead claimant. Mr Mallalieu frankly conceded at the hearing before me that he had made a mistake. It was his mistake, not that of his instructing solicitors. The transcript shows that Mr Robbins did at first question whether Master Bullen was a lead claimant, but then said he was content to take Mr Mallalieu’s word for it. That being so, I am unable to say that, if and to the extent that the Master treated Master Bullen as a lead claimant, he was wrong to do so. In any event, it seems from the transcript that the only item on the bill to which Master Bullen’s status as a non-lead claimant was relevant was the witness statement. I am satisfied that the Master, having looked at the witness statement and assessed it, was not wrong to allow 2 hours for it. I therefore dismiss this ground of appeal.

Conclusion

[58]For these reasons I dismiss this appeal.

Cited in 1 later judgment