Aurangzeb v Walker, Court of Appeal - Supreme Court Cost Office, January 22, 2009, [2008] EWHC 90134 (Costs)

Resolution Date:January 22, 2009
Issuing Organization:Supreme Court Cost Office
Actores:Aurangzeb v Walker

Case No: 0806071

Neutral Citation Number: [2008] EWHC 90134 (Costs)



Clifford’s Inn, Fetter Lane

London, EC4A 1DQ

Date: 22nd January 2009

Before :


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Between :


| |(by his litigation friend Mrs Surlya Rahman) |Claimant |

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| |MISS NICOLA WALKER |Defendant |

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Mr Kevyn Thompson, Costs Draftsman (instructed by SK Legal) for the Claimant.

Mr David Cooper, Legal Executive and Costs Draftsman (instructed by McCullagh & Co.) for the Defendant.

Hearing date: 15th December 2008

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Master Rogers:

The Issue

  1. The issue in this case is the basis upon which the Claimant’s solicitors’ costs should be assessed. Although apparently straightforward, this issue has involved a consideration of the interrelationship of a number of the CPR Rules, and reference to a number of reported cases.

  2. For these reasons I reserved judgment, although the sums at stake are not in any sense substantial, because it seemed to me, as it did to the parties, that this case was perhaps of more general importance than simply to the parties involved.

    The Background

  3. The Claimant, born on 4th January 2004, was involved in a minor road accident on 28th August 2007, when he was 3 years and 7 months old. At the time of the accident he was sitting in the rear seat of a London Taxicab on a booster seat. A seat belt was being worn and there was a head restraint. A vehicle being driven by the Defendant collided with the rear of the taxi pushing it forward into the car in front.

  4. As a result, the claimant suffered soft tissue injuries to the left hand and neck and upon advice from his GP was prescribed paracetamol as required. He suffered sleep deprivation for two weeks but 10 days after the date of the accident the hand injury had settled.

  5. The was continuing complaint of some stiffness and pain in the left side of the neck but, again, that appeared to have fully resolved by four weeks after the accident with no further problems having been reported.

  6. The Claimant was understandably shaken and tearful at the time of the accident and demonstrated some initial anxiety and wariness in relation to travelling in the vehicle.

  7. This has not persisted and there is no indication of any symptoms of anxiety or stress as a result of the accident and it can therefore be said that, medically, he has made a full recovery.

  8. The Claimant, through his mother and litigation friend Mrs Surlya Rahman, instructed solicitors to represent him in this matter and to pursue a claim for personal injury damages on his behalf. Liability was never in dispute, and negotiations between the Claimant’s solicitors and the Defendant’s insurers took place without the necessity for proceedings to be issued and were successful.

  9. It was agreed that the appropriate level of damages which were on offer, and which the Claimant through his next friend was willing to accept, were £500. The exact agreement was a matter of some discussion before me during oral submissions and indeed at one point it seemed to be being suggested on behalf of the Claimant that, in the events which happened, there was not in fact any agreement at all.

  10. However the Claimant’s costs draftsman conceded, during the course of his submissions, that the Claimant did not seek to unravel the entire agreement but simply to submit that his solicitors were entitled to a more generous award of costs than that contended for by the Defendant.

  11. On the 15th November 2007 the Claimant’s solicitors disclosed medical evidence summarised above to the Defendant’s insurers, AXA Insurance, and invited the insurers to make an appropriate offer.

  12. Having heard nothing from the Defendant, or her insurers, the Claimant’s solicitors wrote to AXA Insurance on 3rd January 2008. The relevant paragraphs of that letter read as follows:

    “We therefore make a formal part 36 Offer in respect of Quantum to be in the sum of £500 in full and final settlement net of CRU and any contributory negligence alleged. The offer is also considered to be inclusive of interest.

    Please note that you have 21 days from the date of this letter by which to accept the same whereafter it can only be accepted if the parties agree liability as to costs or with the court’s permission.

    Please note that this offer is withdrawn on Thursday 24 January 2008 whereafter our client shall seek a greater amount together with indemnity costs.”

  13. It appears from the next letter that an agreement was struck on the telephone on 28th January 2008 (which, it is to be noted, is outside the 21 day period set out in the part 36 Offer letter quoted above).

  14. The Claimant’s solicitors version of that agreement is set out in their letter to AXA Insurance of the 28th January 2008 which reads as follows:

    “We write further to the telephone conversation of today between our Mr Khan and your Mr Mark Brookbanks and can advise that our client accepts the offer in the sum of £500.00 net of contributory negligence and CRU in full and final settlement of his claim.

    Please note that this acceptance is subject to you paying our reasonable and proportionate costs which we have agreed to deal with on a predictable basis...

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