Lawyers can recover costs of attending rehab meetings “in principle”

Roberts: Judgment provides clarity

The Court of Appeal has overturned a significant ruling last year that the costs of a fee-earner’s attendance at rehabilitation case management meetings are irrecoverable.

Lord Justice Coulson said the Serious Injury Guide and the Rehabilitation Code both envisaged the possible involvement of a solicitor in ongoing rehabilitation meetings.

“Whilst the extent of them, and the amount of necessary attendance, is a matter for the assessment of the cost budget or detailed assessment, both of those guides would clearly indicate that, as a matter of principle, this was a recoverable category of costs.”

He continued that it was “tolerably clear” from the evidence in Hadley v Przybylo [2024] EWCA Civ 250 that the claimant’s solicitor’s involvement in the rehabilitation “has generally been beneficial for both parties”.

“We also note that the defendant’s solicitor has attended one or more of these same meetings, again suggesting that, in principle, this is a recoverable item of cost.”

Giving the court’s unanimous ruling, Coulson LJ said that, “as a matter of common sense”, it would be unusual to rule that any generic category of cost was irrecoverable in principle, and that applied here.

“Equally, it would be wrong for the claimant’s solicitor to assume that routine attendance at such meetings will always be recoverable. It will always depend on the facts.”

At first instance, Master McCloud disallowed £52,000 worth of future costs of attendance at rehabilitation meetings at a costs budgeting hearing, because she concluded that these were not “incurred in the progression of litigation”. She leapfrogged the appeal to the Court of Appeal.

The substantive case was a catastrophic injury suffered in a car accident where the damages since agreed amounted to £14.5m when capitalised.

Coulson LJ noted that, at first sight, “the figures – both in relation to the costs incurred, with which the master was not directly concerned, and the future costs – seem very high” and were plainly open to challenge.

“We do not know if the claimant’s solicitor operated on the assumption that he was entitled to attend every routine rehabilitation case management meeting, but for the reasons we have given, if he did, he was wrong to do so.

“There was no such default or blanket entitlement, and the Serious Injury Guide and the Rehabilitation Code do not justify a contrary approach.”

He remitted the case to a costs judge where the defendant could make its reasonableness and proportionality arguments.

Simon Roberts, head of personal injury and clinical negligence at Gamlins Law, who acted for the claimant, said: “The judgment provides clarity regarding the recoverability of rehabilitation-related costs and, importantly, ensures that claimants, often in extremely complex matters involving catastrophic injury, can gain the necessary support and assistance throughout their case.”

Chris Barnes KC from Exchange Chambers, who along with Matthew Stockwell also represented the claimant, said: “The judgment is a significant win for claimants and their rehabilitation. It goes far beyond restoring what might have been the position prior to the first instance hearing. No longer can defendants challenge these costs on the point of principle.

“Further, in reiterating the approach of In Re Gibson’s Settlement Trusts, the court has steered away from the potentially narrower ‘progressive’ test that had become increasingly pervasive.”

Coulson LJ confirmed that the recoverability of costs depended on the application of the three criteria in that 1981 case: that the costs must relate to something which proved of use and service in the action; was relevant to an issue; and was attributed to the defendant’s conduct (i.e. that which gave rise to the cause of action in the first place).

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