“Tough love” ruling is game changer

Practitioners have warned of the risk of professional negligence suits following the Court of Appeal’s game-changing “Plebgate” costs decision.

Francesca Kaye, president of London Solicitors Litigation Association, says the decision was “tough love”, but warns: “There’s every chance that there will be a great deal of satellite litigation around professional negligence claims.”

Geraldine Elliott, partner at City law firm RPC, warns the ruling could lead to “more professional negligence cases against law firms who fail to submit an accurate costs budget in time”.

She says the ruling will be seen as “a blow” for those who pay for the best advice “because it introduces a risk that an administrative error will leave them having to pay their own legal costs”.

Elliott says it is difficult for law firms to accurately estimate their costs when they have to submit their budgets as long as a year before the case reached court, “and so the successful claimant may be penalised by getting a lower costs recover”. 

Andrew Mitchell MP lost his appeal over costs sanctions, in Mitchell v News Group Newspapers [2013] EWCA Civ 1537, which centred on whether he called a Downing Street police officer a “pleb”.

Mitchell’s solicitors submitted their budget late during his libel action. Costs sanctions were imposed which limited recovery to the court fees, whereas the defendant’s costs budget was £589,558. 

Rejecting Mitchell’s appeal, Lord Dyson said he wanted to “send out a clear message” about compliance with the Civil Procedure Rules (CPR).

Jeremy Ford, of 9 Gough Square, writing in NLJ this week, says the decision is underpinned by the “broader sense” of justice outlined by Lord Dyson in the 18th implementation lecture, in March, in which “the court has to consider the needs of all litigants, all court users".

Andy Ellis, managing director at Practico, who advised NGN’s lawyers Simons Muirhead and Burton, on costs for the case, says: “The wriggle room is now extremely narrow when delay will result and especially if the court is inconvenienced. There have been whispers that the courts’ commitment to budgeting might be waning—Mitchell shows that this is far from the case."