Merrix v Heart of England NHS Foundation Trust (2016) QBD (DJ Lumb sitting as a regional costs judge) – 13 October 2016

Following the Claimant’s successful claim for damages for clinical negligence, the court was required to determine as a preliminary issue the extent to which the budgeting regime under CPR Pt 3 fettered the powers and discretion of the costs judge during the detailed assessment. The Claimant receiving party submitted that if her costs were less than the budgeted figures, they should be assessed as claimed without further consideration and that costs could only be reduced if the paying party satisfied an evidential burden that there was good reason to depart from the figure in the budget.

Held: Costs budgeting was not intended to replace detailed assessment; the receiving party’s last agreed/ approved budget was just another factor to have regard to. CPR PD 3E expressly stated that in budgeting the court was not carrying out detailed assessment in advance. A budget was neither a cap or a fixed amount. The ordinary meaning was more of an available fund which was to be within the reasonable range of proportionate costs. Nowhere was it stated to be a fixed assessed amount. The powers and discretion of a costs judge on detailed assessment were not fettered by the costs budgeting regime save that the budgeted figures should not be exceeded unless good reason could be shown.