Richard Wilcock comments on recent case Nicolaou v Cass
March 19, 2018
On the 28th February 2018, District Judge Baldwin, Regional Cost Judge in Liverpool County Court handed down his reserved judgment in the case of Nicolaou v Cass, following a hearing on 1st November 2017.
By Richard Wilcock
The claimant brought a successful claim for clinical negligence which settled in the sum of £250,000. Detailed Assessment proceedings were commenced and the defendants, amongst other things, challenged the reasonableness of the two stage After the Event (‘ATE’) insurance premium of a policy which the claimant had obtained via ARAG.
At the outset, the claimant sought recovery of an ATE premium in the sum of £53,145.00 (stage 2 £48,195.00 plus IPT). Following an initial hearing, the Court was not satisfied with the evidence produced by the claimant in relation to the rating of the policy (whether block or individually rated) and why this particular policy had been chosen by the claimant. The hearing was adjourned for further evidence to be produced by the claimant.
In advance of the next hearing, the claimant’s solicitor produced evidence, by way of a witness statement as to the rating, in addition to a witness statement from an underwriting manager at ARAG which admitted that the calculation of the second stage premium was in fact wrong and this was due to a ‘typographical error’. The correct premium, it was stated was £32,120.00 plus IPT. No further evidence was produced as to the basis of the error or how the revised premium had been calculated.
Following a final hearing, Regional Costs Judge Baldwin, disallowed the second stage of the ATE premium in it’s entirety. He accepted the defendant’s submissions that the claimant had not, on the balance of probability, proved the correct figure for the second stage premium. He criticised the evidence produced by ARAG suggesting that it did no more than to point out the error in the calculation and the apparent correct figure, without explaining the provenance of the error and how the revised figure had come about. This was on the backdrop of earlier errors in the evidence produced by the claimant as to the rating of the policy.
Whilst the judgment is facts specific, it is a helpful reminder to practitioners that the burden and standard of proof in costs proceedings is no different to that what is expected in non-costs cases, with the additional ‘trap door’ of doubt being exercised in the paying parties favour on a standard basis assessment, if the evidence, documentary or otherwise does not cut the mustard.