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Failure to file a budget due to disputed track

The court decline to deprive a party of costs where the failure to file a budget had been the result of a genuine jurisdictional dispute as to track.

MAISURIA v LONDON BOROUGH OF EALING (UXBRIDGE CC, 18TH SEPTEMBER 2013, UNREPORTED).

Hot on the heals on the Andrew Mitchell case came Maisuria v London Borough of Ealing, a further example of a party failing to file a budget in accordance with the rules. When the Court sent out the CPR 23(1) notice of proposed allocation, the Defendant completed the attached directions questionnaire indicating that the appropriate track was in dispute. The Defendant's case was that, based upon the existing medical evidence, the time estimate for trial (1 day) and the pleaded claim for special damage, it was a fast track case. The directions questionnaire contained a box stating that parties should file a costs budget in precedent H if the claim was "likely to be allocated to the multi-track". The Defendant did not think it was likely, or indeed that the evidence supported a claim in excess of £25,000, and therefore elected not to do so. Shortly before the CMC, the Claimant served additional expert evidence indicating that his injury had not recovered in accordance with the original prognosis and was more serious than had been anticipated. In light of this deterioration, the Defendant accepted that the case should now be allocated to the multi-track and filed a Costs Budget on the day before the CMC.

The Claimant argued that, by analogy with the Andrew Mitchell MP case, the Defendant should be limited to a costs budget comprising its Court fees, pursuant to CPR 3.14.

DDJ Sofaer concluded that the Mitchell case was distinguishable on its facts. Whereas in that case the reasons for not filing a budget related to the solicitors being under pressure of work and experiencing unexpected delays, in this case there had been a genuine jurisdictional dispute as to whether this was a multi-track case at all, and the Defendant had been served with the relevant evidence late in the day. The Court had a discretion built in to CPR 3.14 ('unless the Court orders otherwise') and it was not necessary for the Defendant to make a separate application for relief from sanction. Accordingly, the Court approved the Defendant's (and Claimant's) budget and did not apply the sanction.

Read Jack Harding's full Lexology article.

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