Costs of Preliminary Issue Cannot be Assessed Without Forthwith Order
ABA v University Hospitals Coventry and Warwickshire NHS Trust  EWHC B4 (Costs)
The Claimant issued a clinical negligence claim on 22 December 2017. Master Cook made an order providing for liability and causation to be tried as a preliminary issue. On 11 January 2021 Mr Justice Saini gave judgment for the Claimant against the Defendant for 65% of damages. Mr Justice Cook’s order, made by consent, made the following provision for costs:
“the Defendant do pay the Claimant’s costs of and incidental to the issue of liability on the standard basis such costs to be the subject of a detailed assessment, if not agreed…”
The claim was thereafter allocated to the Multi-Track and assigned to Master Cook.
While the main action continued, the Claimant, on 13 August 2021, served a bill of costs in relation to the liability issue, with a notice of commencement for detailed assessment proceedings. The Defendant applied for the notice of commencement to be set aside on the grounds that the detailed assessment was premature without an order for costs to be assessed forthwith.
The rules relevant to the application are contained within CPR 47.1 and associated Practice Direction at 1.1-1.4
The Claimant contended that the order dated the 11 January 2021 was a final order that concluded the liability proceedings, as liability had been determined. The proceedings currently under way were based upon the outcome of the liability judgement, the original claim had been superseded by the judgment. This view was supported by the pre-CPR judgement in Molnycke AB and Another v. Procter & Gamble Ltd and Others (No. 6)  F.S.R. 154 (Molnycke).
The Claimant in addition submitted that ‘finally determined’, as far as CPR PD 47.1 is concerned, means there is final order determining the proceedings, subject only to any possible appeal or detailed assessment. The order dated 11 January 2021, was a final order which could only be overturned by an appeal.
Costs Judge Leonard concluded that the Claimant was unable to rely on the decision in Molnycke to justify starting detailed assessment proceedings. Costs Judge Leonard referred to the decision of Master Campbell in Bottin (International) Investments Ltd v Venson Group Plc  EWHC 90005 (Costs), which concluded that costs of the preliminary issue could not be assessed immediately without an order to that effect.
Additionally, the wording of RSC Order 62, rule 8, relied on in Molnycke is manifestly different to the current CPR wording, in that it refers to the ‘conclusion of cause or matter’ as opposed to the CPR 47.1 wording of ‘claim’. The order dated 11 January 2021 determined some preliminary matters in the claim, however the claim remains live with enough remaining matters to merit a 10-day Trial. Costs Judge Leonard concludes that the proposition that liability and quantum do not form part of the same claim would be ‘highly dubious’.
Costs Judge Leonard concluded that absent an order for immediate detailed assessment, the costs of the preliminary issue cannot be assessed until the proceedings have concluded.