Bollito v Arriva London, Court of Appeal - Supreme Court Cost Office, February 27, 2009, [2009] EWHC 90136 (Costs)

Resolution Date:February 27, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Bollito v Arriva London

Neutral Citation Number: [2009] EWHC 90136 (Costs)

Case No: 09-A-2284




Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date: 27 February 2009



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Ms S Towler (Solicitor) and Mr P Walton (Costs Draftsman)

(instructed by Russell-Cooke) for the Claimant

Mr David Cooper (Legal Executive and Costs Draftsman)

(instructed by Kennedy's) for the Defendant

Hearing date: 21 January 2009

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Master Rogers:


  1. This reserved judgment deals primarily with an application made during the course of a detailed assessment on behalf of the Defendant to disallow all interest, for reasons which will appear later in this judgment.

  2. In addition I am taking the opportunity to set out concise reasons for refusing the Defendant permission to appeal on two other issues which were decided in the course of the detailed assessment.

    The background

  3. The Claimant was at the relevant time (15 July 2005) a 32-year-old Italian graphic designer who was visiting London with his sister and other friends.

  4. They had been out to a meal in the West End at which minimal alcohol had been consumed and at about 11.30 p.m. were anxious to return home to Streatham utilising Night Bus N159.

  5. As they were approaching the bus stop for this bus towards the bottom of Haymarket an N159 pulled up at the bus stop and paused briefly before moving off but only a few yards to the next set of traffic lights which were red against the traffic.

  6. The Claimant and his friend, Mr Damiano, rushed after the bus and knocked on the driver's door to let them in. This the driver did. Mr Damiano moved into the body of the downstairs level of the bus but the Claimant remained on the threshold of the bus seeking to get the girls who were trailing behind him and Mr Demiano onto the bus before it moved off.

  7. However the driver closed the doors trapping the Claimant in them and accelerated away when the traffic lights changed to green.

  8. The Claimant fell from the bus, he then fell heavily, hitting his head on the road. His injuries were catastrophic. He was in a coma for several months and it was twenty months before he was discharged from hospital.

  9. He is now back in Streatham under the care of his wife but as a result of the injuries sustained totally unable to work or indeed to look after himself.

  10. Accordingly he instructed Messrs Russell-Cooke to represent him in a claim for damages and his wife Filomena Esposito became his litigation friend.

  11. At an early stage Messrs Russell-Cooke agreed with Messrs Kennedy's, solicitors for the Defendant [insurers] that there should be a split trial on liability and quantum.

  12. There were diametrically opposed versions of what happened. The Claimant contended that due to the negligence of the driver he fell from the bus sustaining his injuries.

  13. The driver however, supported by an independent witness sitting in the bus, contended that the Claimant had jumped off the bus and therefore was the author of his own misfortune.

  14. There was detailed expert evidence as to the mechanics of operation of the door of the bus with reports from an expert for the Claimant (Mr Harris) and an expert on behalf of the Defendant (Mr Alford) but in the event neither of those experts actually gave live evidence.

  15. The trial of liability took place over three days in October 2007 before Nelson J. In a reserved judgment delivered early in January 2008 the judge found in favour of the Claimant after a very careful analysis of the evidence given and acquitted him of any element of contributory negligence. He also ordered that the Claimant should have his costs of the preliminary issue trial to be assessed at that stage and not to await the outcome of the quantum claim.

  16. I was told by the parties at the outset of this assessment that the quantum trial is fixed for October of this year, the Claimant's schedule of loss claiming a total of over £2 million having been served in November of last year and the Defendant's counter-schedule being due this month.

    The Claimant's bill of costs and the detailed assessment

  17. The Claimant served notice of commencement seeking payment of his solicitor's costs totalling £198,903.05 within the primary three month period allowed under the Rules for such a step.

  18. A document containing very detailed Points of Dispute running to over 60 pages was served on behalf of the Defendant in August 2008 and equally detailed Replies to those Points of Dispute were served on behalf of the Claimant on 9 December 2008. The case was listed before me with a time estimate of two-and-a-half days starting on Tuesday 20 January 2009. As a result of having the time for extensive pre-reading and a pragmatic and sensible approach to the points raised by the two costs draftsmen involved with help from the fee earner Miss Towler, who was also present, it in fact proved possible to complete the assessment in one full day.

  19. The Claimant's costs were assessed at £176,595.59, and, as this was well in excess of the Defendant's offer, I also awarded the costs of the detailed assessment to the Claimant which were summarily assessed at £23,297.10.

  20. The Points of Dispute contended that in the circumstances of this case no interest should be paid by the Defendant. At the hearing of the detailed assessment I directed that if the Defendant wished to persist in that contention his costs draftsman must issue a formal application which was duly done and was listed and heard on the second day of the two-and-a-half days allocated to this case.

  21. The funding of the Claimant's solicitors' costs fell into three distinct retainers. In the first it was financed by a CFA with a success fee. In due course it transpired that under the policy which the Defendants had with DAS Legal Insurance, there was an extension to cover claims against the bus company, supported by BTE Insurance (though with an initial cover limit of £50,000). This sort of cover has now become general amongst bus companies, but only in the last few years, in my experience.

  22. When the £50,000 insurance cover was exhausted it was asked whether DAS could provide further cover for what was clearly going to be an expensive case to run.

  23. At first it seemed that further cover could readily be obtained in that way but it then became apparent that such further cover would be limited to a further £50,000.

  24. Thereupon the Claimant's solicitors entered into a second CFA with the Claimant and had to pay a very substantial premium for ATE cover against paying the Defendant's costs, doubtless because of the late stage at which it was sought and the complete and continuing denial of liability on behalf of the Defendant.

  25. I was told during the course of the hearing that bills had been rendered to the Claimant in respect of the first two retainers but it was accepted that the Claimant himself has not paid any of these costs nor is he being expected to pay any costs under the terms of the second CFA.

  26. In summary the Defendant's argument is that interest is payable to reimburse a claimant for costs paid or interest lost on money used to pay costs, and since this Claimant has paid no costs there is nothing to reimburse and therefore no interest should be paid.

  27. The Claimant's approach is that it has been the law since 1838 that interest is payable under section 17 of the Judgments Act 1838 on every ``judgment debt'' and that accordingly the Claimant's solicitors are entitled to interest pursuant to the decision of the House of Lords in Hunt v R.M. Douglas (Roofing) Limited [1990] AC 398.

  28. Mr Cooper helpfully lodged a skeleton argument and on the morning of the hearing produced a folder containing eight authorities including Hunt v Douglas (Roofing) to all of which he referred in his cogent and helpfully concise oral submissions.

    The Defendant's Submissions

  29. Mr Cooper conceded that section 17 of the Judgments Act 1838 conferred for the first time the right to interest on a successful party. However as a result of amendments that came into force when the CPR was brought in on 26 April 1999 the section now reads:

    ``(1) Every judgment debt shall carry interest at the rate of 8% per annum from [such time as it shall be prescribed by rules of court] until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.

    [(2) Rules of court may provide for the court to disallow all or part of any interest otherwise payable under sub-section (1).]''

  30. Mr Cooper also conceded that under section 18 of the 1838 Act an award of costs is to be treated as part of the judgment debt so attracting interest but he submitted that there was no other source of jurisdiction to award interest on costs and neither section 35A of the Supreme Court Act 1981 nor the court's inherent jurisdiction authorised the court to make an award of interest.

  31. CPR 44.3 is headed:


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