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Ghattaorya v Bailey (2009) LTLPI 05/10/2009

Sarah was again defending in this personal injury disposal case. The claimant claimed for a 24 - 38 month neck and lumbar spine whiplash injury, with a 2 years travel anxiety. However, the court found the evidence of the claimant to be extremely unsatisfactory. The court awarded for a 6-months neck injury, disallowing the claim for the lumbar spine and all specials relating to the lumbar spine.

The court also disallowed the claim for miscellaneous expenses in its entirety, noting that the cost of telephone calls was relatively low nowadays. The judge commented that claiming for miscellaneous expenses was a bad habit claimant solicitors had got into.

Instructed by Patrick McCarthy of Horwich Farrelly Solicitors, Manchester.

Pathak v Collins (Sept 2008) LTLPI 27/3/2009

In a personal injury disposal case, Sarah successfully argued that the winning claimant should not be entitled to any costs. The claimant suffered a 4 month cervical spine whiplash injury. Prior to the issue of proceedings, the claimant had made a global Pt 36 offer in the sum of £2,362.35 and the defendant had made a global Pt 36 offer in the sum of £1,900. The defendant beat her offer.

Sarah successfully argued that the claimant's single pre-issue offer was highly unrealistic (approx £2,000 for generals for a bare 4-month whiplash) and therefore the claimant had failed to comply with the pre-action protocol by not entering into any genuine negotiations.

She further contended that to further the over-riding objective, the court had to disallow all the claimant's costs because to allow even predictive costs would give the claimant what they would have received had the protocol been complied with.

The judge held that the claimant's offer was wholly unrealistic and they had not complied with the rules and pre-action protocol wholeheartedly. The claimant could not recover her costs for up to 21 days after D's offer, which would normally apply, nor even predictive costs, but only the medical report disbursement. This was because of the claimant's unrealistic stance pre-issue on a bare four-month whiplash and her failure to comply with the protocol. Also, her costs schedule was, on any view, inflated.

Yvonne Hazel Painting v University of Oxford (2005) [2005] EWCA Civ 161, Haywood v Haywood (2006) LTLPI 2/6/2006,Smith v Chantelle Irving (2006) LTLPI 26/2/2007, Mark Chatburn v Spicer (2007) LTLPI 19/6/2007 and Jamil v Harling (2007) LTLPI 18/3/2008 considered.

Instructed by Graham Isaacs, Berrymans Lace Mawer Solicitors, Manchester.

R (on the application of Newham London Borough Council)v Stratford Magistrates' Court (Interested party 'Dublin') [2008] EWHC 125 (Admin), [2008] RA 108, [2008] All ER (D) 17 (Jan) [2008]

On judicial review Sarah successfully argued that the Magistrates' Court had erred in setting aside liability orders which had been made 2.5 to 5.5 years earlier.

The lower court should have had regard to the principle of finality of litigation; if a defendant's case was a liability order should be set aside and the delay in applying was because he had only very recently learned of its existence, the court had to investigate how long that notice was. It was insufficient to say it would be in the interests of justice to set aside a liability order.

Instructed by Robert Taylor, Barclay Taylor Solicitors, London.

Jamil v Harling (2007) LTLPI 18/3/2008

Sarah successfully resisted an application by the claimant to accept the defendant's payment in out of time, whilst still retaining Pt 36 costs protection. Also the claimant advanced a head of claim for which there was no evidence.

The judge held the solicitors for the claimant should have come off the record once it became apparent they could not support this head of claim.

Sarah successfully argued the claimant should not recover any costs because of their poor conduct. The court ordered the claimant was not entitled to any costs or disbursements, not even up to 21 days before the defendant's payment in, and the claimant had to pay all the defendant's costs.

Instructed by Philip Dearden, Ashton Morton Slack Solicitors, Sheffield (now Horwich Farrelly.)

Smith v Chantelle Irving (2006) LTLPI 26/2/2007

Sarah successfully argued no costs should be awarded to the successful claimant in a disposal hearing because of the conduct of the claimant's solicitors. The court held the claimant's solicitors had grossly over-valued the claim and failed to enter into real negotiations having only made one unrealistic offer before issue. Further, the claimant's costs were exaggerated and difficult to justify. The court ordered a partner from the claimant's solicitors to file and serve a witness statement explaining their conduct to the judge.

Instructed by Philip Dearden, Ashton Morton Slack Solicitors, Sheffield (now Horwich Farrelly.)

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