Thompson v NSL Limited [2021] EWHC 679 (QB)

In the matter of Thompson v NSL Limited [2021] EWHC 679 (QB) Master McCloud considered an application by the Claimant to revise parts of a budget originally approved by a District Judge in the County Court.

Background

The Claimant commenced a claim for personal injury in the County Court originally valued at approximately £150,000. The Claimant filed a budget which was approved save for the Trial Preparation and Trial phases. However, between filing the initial budget and its approval at the CCMC the Claimant’s claim increased in value to £3.9 million. Upon the file being transferred to the High Court the Claimant subsequently applied to revise their budget upwards.

Claimant’s Position

The Claimant received medical evidence between the time for filing the budget and the CCMC, therefore the increased value of the claim was known to the parties at the time of the budgeting hearing. Master McCloud commented that the transfer of proceedings to the High Court was partly due to the increase in value, albeit the Claimant’s position was that the application was required on the basis that the complexity and time involved had increased significantly and, perhaps most importantly, more than was reasonably anticipated at the time the budget was filed. The Claimant alleged that it wasn’t possible to apply any earlier as the medical evidence was still unclear. They applied for an increase to the budget on the basis that:

• There would be a significant delay to the eventual trial date
• More significant disclosure than had been foreseen
• Significant increase in solicitor time due to the Claimant’s condition and increased expert evidence

Defendant’s Position

The Defendant averred that at no point up to or during the CCMC did the Claimant apply to vary the budget or ask for an increase to the budget or request that it could be updated at a later date. Master McCloud provided that :

“It was suggested that this was a case of dissatisfaction with the budget approved by the District Judge. The updated medical appointments were known to be needed at the hearing, and the disclosure was anticipated at the time per the budget assumptions, and the revised claim value was known.”

The Defendant went further to say that the Claimant should have revised their budget in the period between filing and the budgeting hearing. That the correct procedure should have been to apply to revise the budget at the CCMC before the District Judge.

Decision

Master McCloud thought it prudent to initially highlight the issue of the concept of ‘a development’ and commented:

“The term perhaps unfortunately might be taken to mean that one has to point to a specific event…………………….the nature of the claim evolves and a time comes when it is reasonably appreciated that it is a different type of beast from the claim which was initially pursued, and that one may not be able to point to one specific event which led to that so much as a collection of factors.

In this case I do not think it can fairly be said that the solicitors for the Claimant ought reasonably to have foreseen the fact that the value of the claim would increase as much as it did………… Mere possibility I think would be to set the bar too high and to encourage inflated, precautionary budgets”

In reference to the timing of the application to revise the budget, the Master concluded that if the ‘development’ takes place before the budget is filed then it should be taken into account when the budget is considered. In this case the CCMC took place just a couple of weeks after service of the revised schedule of loss was produced, this therefore did not afford the Claimant with sufficient time to attempt agreement with the other side as to the revision (as is required in the rules) before applying to the court for approval. Moreover, the Claimant did apply after the transfer to the High Court but without undue delay.

The Judge did advise that if a significant development occurs in a short period between budget and CCMC then it would have been ideal to have informed the District Judge that a revision would in all likelihood be sought in the future, commenting:

“In my judgment the Claimant’s side acted reasonably in making this application when it did, and the developments which had taken place prior to the CCMC likely made it fairly obvious that one or other side would be likely to consider a revision thereafter, promptly.”

Consequential revisions:

• Increased disclosure from £6,500 to £16,500
• Witness statements from £8,000 to £18,000.
• Experts from £50,000 to £120,000.
• ADR from £12,000 to £15,000.
• Statements of case from £8,500 to £12,000