ADR and costs budgeting

In a recent case Master Macleod ordered ADR for the parties to resolve issues over a costs budget and it was successful.

In the case of Hadley v Przybylo (Costs, Costs budgeting, Costs lawyers, personal injury, case manager, recoverability) [2023] EWHC 1392 (KB) (22 June 2023) 
URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/1392.html 
Cite as: [2023] EWHC 1392 (KB) the Master said that:

1. On rare occasions, like the transit of Venus or a triple Jovian eclipse but far less predictably, costs budgeting ceases to be a cause of judicial ennui, and raises instead something of interest legally. This case determines one such specific issue in relation to the principles of costs budgeting under the Civil Procedure Rules. In particular that issue is whether the inclusion of solicitor attendance time in a budget, for attending case management meetings with medical and other professionals in the course of management of the Claimant’s rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss are in principle costs which may be included in a budget and whether, if so, it is appropriate to include those in the ‘Issues and Statements of Case’ phase of the budget on Form H. The costs in the Claimant’s original budget were very substantial, and in that context I also touch on the question of the benefits of a judge ordering that parties must engage in ADR using appropriately qualified professionals in relation, specifically, to the costs budgets.

1. Before I proceed I will note that in this case, where there is a large budget in a complex and very serious personal injury claim, I took the step of ordering the parties to engage in ADR to seek to resolve issues in the budget before I would budget any outstanding phases. The Claimant’s budget exceeded £1m and my view is that a simple obligation to discuss and seek to agree is an insufficient encouragement to parties to focus their minds on really working to resolve issues, where one often sees that (once the time and trouble of attending a costs management hearing has been incurred) the presence of costs professionals at court and immediately before so often narrows issues which could have been narrowed sooner. I therefore directed that:

1. By the time the matter returned to me some time later, the parties had indeed engaged in ADR using qualified costs lawyers and all but one matter had been agreed on the budget, which I think speaks for itself in terms of saving time and money. It also enabled an important point of principle to be identified, and the rest of this judgment deals with that one outstanding issue.

1. Also, in Thandi v Saggu [2023] EWHC 1379 (Ch) (08 June 2023)
   URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/1379.html
   Cite as: [2023] EWHC 1379, a contract case, the judge stated that  it was ordered that at all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including mediation). I was told that no mediation has yet taken place. Any party not engaging in ADR in some form may expect to be heavily punished in costs irrespective of the outcome of the claim and counterclaim. I would urge that following the determination of this application both parties will re-evaluate the strength and weakness of their respective cases.

   Comment: It is noticeable that the judge actually ordered ADR take place regarding the costs budgets, using a qualified person. We do costs mediation because our mediators are all qualified lawyers with knowledge about costs. To instruct us please ring or drop us an email.