Burgess v J Breheny Contracts Ltd, Court of Appeal - Supreme Court Cost Office, January 16, 2009, [2009] EWHC 90131 (Costs)

Resolution Date:January 16, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Burgess v J Breheny Contracts Ltd

Case No: 0803560



Clifford's Inn, Fetter Lane

London, EC4A 1DQ

Date:16th January 2009

Before :


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Between :

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Mr. K Ghaly (instructed by ?Messrs. Thompsons Solicitors) for the Claimant.

Mr. S Edwards (instructed by Messrs. McCullagh & Co.) for the Defendant.

Hearing dates: 14th October 2008

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Approved Judgment


Master Haworth:

  1. This case relates to the detailed assessment of the costs payable by the Defendant to the Claimant. The majority of the Claimant's costs have been agreed by the Defendant. The only items remaining in issue are:

    i) An after the event insurance premium claimed in the sum of £2,730.00;

    ii) The costs preparing the bill of costs which is claimed in the sum of £104.90; and

    iii) The success fee applicable to the costs of preparing the bill claimed in the sum of £65.56.


  2. This is an unusual personal injury case which does not fall into any of the standard categories of claim. The brief facts are that in July 2006 the Defendants were instructed by the Environment Agency to carry out excavations for the construction of two lakes. The Claimant's property in Rainham, Essex backed directly onto the temporary road constructed by the Defendant on the east bank of the River Beam. The work being undertaken was approximately ten metres from the rear of the Claimant's property.

  3. From July 2006, lorries from the Defendant's company carried large quantities of ballast and sand from one end of the site to an access point on the A1306 road. Around 50 lorries and trucks per day fully laden with ballast passed the end of the Claimant's garden. The lorries caused dust to rise when passing and no means of reducing the dust by water on the road surface was used to dampen the surface and therefore reduce the dust. In addition the lorry loads were uncovered causing sand and ballast to escape from them. It was alleged that the sand and ballast had caused dust to be blown into the Claimant's house and garden and as a result the Claimant suffered breathing problems owing to dust inhalation. Consequently the Claimant claimed that he had sustained breathlessness and congestion caused by dust inhalation. The Claimant was 70 years old at the time of the event which gave rise to his claim and had been a smoker for most of the 50 years which preceded his complaint of restricted breathing. When the Claimant visited his GP in August 2006 complaining of shortness of breath the GP expressed the opinion that the problem had been caused by medication that the Claimant was taking for another condition. The Claimant underwent a lung function test on 3rd September 2006 which disclosed no evidence of air flow obstruction.

  4. The matter was compromised in the sum of £1,500 damages with costs to be assessed by way of a Part 8 application failing agreement. On 29th May 2008, District Judge Mullis sitting at Romford County Court ordered that:

    i) The Defendant must pay the Claimant's costs of the claim in respect of which terms of settlement had been agreed;

    ii) The Claimant must commence detailed assessment proceedings in accordance with CPR Rule 47.6 for assessment on the standard basis. The matter being transferred to the Supreme Court Costs Office, the costs of the application being costs in the assessment.


  5. The brief chronology of events is as follows:

    i) Exposure to dust; July 2006 onward;

    ii) Letter of Claim; 5th January 2007;

    iii) Defendant's insurer admits primary liability subject to issues of causation; 6th February 2007;

    iv) Claimant enters into CFA; 20th March 2007;

    v) ATE insurance incepted; 13th July 2007;

    vi) Medical report of Dr Beccles; 10th August 2007;

    vii) Medical report served upon Defendant; 22nd August 2007;

    viii) Defendant's first Part 36 offer of £1,500; 1st November 2007;

    ix) Settlement in the terms of the Defendant's Part 36 offer; 26th November 2007;

    x) Order for detailed assessment pursuant to Rule 44.12A; 29th May 2008;


  6. The Claimant took out after the event insurance with UIA on 13th July 2007. The policy had a two-stage premium. The base premium was £2,600 plus IPT of £130. An additional sum was payable on allocation but it was conceded that this stage was never reached. The limit of indemnity under the policy was £50,000 on the fast track and £100,000 if the case was allocated to the multi track. The cover included the following:

    i) Opponent's costs;

    ii) Disbursements;

    iii) Counsel's fees;

    iv) Unrecovered disbursements if the Claimant failed to beat the Defendant's Part 36 offer;

    v) Adverse costs orders in interim applications;

    vi) Appeals.

  7. Mr Doug Christie, a partner in the Claimant's firm of solicitors provided a witness statement dated 11th January 2008 dealing with how the Claimant's solicitors assess insurance premiums with particular reference to industrial disease ATE premiums. At paragraph 6 of his witness statement he says:

    ``6. With regard to quantum of the premium our objective since ATE became available has been to ensure that claimants under a CFA have access to insurance provided by reputable suppliers at a reasonable market rate. Our duty to our clients as solicitors is to advise them as to appropriate insurance for their cases. It is part of my responsibility to review insurance products to ensure that our clients are provided with appropriate insurance cover in respect of their claims.''

    At paragraph 13 he went on to say:

    ``13. It is also important to bear in mind the other risks covered by the insurance with regard to, for example, failure to beat a Part 36 payment, late acceptance of such offers, successful multi defendant cases where adverse costs...

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