Are the costs of lawyers attending case management meetings recoverable?

In Hadley v Przybylo [2024] EWCA Civ 250, the Court of Appeal considered the following question: “is the cost of a fee earner’s attendance at rehabilitation case management meetings irrecoverable in law as costs in the litigation?” [3].

Hadley was a serious brain injury claim arising from a road traffic accident and C was a protected party.  C had been in hospital and rehabilitation facilities (gradually less intensive) for over 2 years after the accident.  Thereafter, C continued to receive care and therapies subject to supervision by a case manager.  By the time of the Court of Appeal hearing, the case had settled subject to court approval for a PPO of £170,000 pa for care and case management plus a lump sum of £5.6m.  The care envisaged in the settlement was 24 hours per day including sleeping night care.  Costs remained outstanding so the appeal was not academic.

C’s costs budget included estimated costs of £68,400 for C’s solicitor to attend the regular case management meetings with medical and other professionals, meetings concerned with C’s medical and rehabilitation needs.  Total costs including incurred under this head were over £130,000.

At first instance, Master McCloud held such costs did not progress the litigation and so were irrecoverable in principle.  The Master acknowledged that there could be recoverable costs liaising with case manager or carer (obtaining documents for disclosure or information for a witness statement, for example) but concluded that attendance at meetings with a clinical purpose were in a different category.

The Court of Appeal allowed C’s appeal against the decision of principle.  The grounds were essentially as follows:

• Section 51 of the Senior Courts Act 1981 allows a party to recover “costs of and incidental to the proceedings” and confers a broad discretion [47].
• The broad limits of recoverability are as stated in In re Gibson’s Settlement Trusts [1981] Ch 179.  The costs must relate to something which (i) proved of use and service in the action, (ii) was relevant to an issue, and (iii) was attributed to the defendant’s conduct (i.e. the tort): [38] and [47].
• The Master’s test (whether work was “progressive” of the litigation or “non-progressive”) was not helpful and might exclude some costs which fall within the statutory words “incidental to the proceedings” [50].
• Whether a claimed item of costs is recoverable will always depend on all the circumstances so it is unusual and unwise to try to set universal guidelines [47].
• D accepted that in principle “the role of a legal representative litigating a personal injury claim can be said reasonably to include costs for the purposes of furthering the claimant’s rehabilitation needs” [53].  This accorded with the approach in the Serious Injury Guide and in the Rehabilitation Code.  Rehabilitation was for the benefit of C but also of D (in optimising the outcome and therefore potentially reducing future losses and expenses.)  So C’s solicitor in engaging with the clinical case management meetings or multi-disciplinary team meetings was not necessarily outside the scope of “costs of and incidental to the proceedings” [56-58].
• The Court of Appeal also held that where such costs are claimed, “Issues and Statements of Case” is the correct phase in which to identify them: [25].

So far so good for C.  But the Court of Appeal was keen to stress that it would be wrong for a claimant’s solicitor to assume that “routine attendance at such meetings will always be recoverable.  It will always depend on the facts” [47].  The costs claimed in the instant case “seem very high” [60] observed the court and were “plainly open to challenge” [61].  The Court of Appeal certainly did not give carte blanche to solicitors to attend such meetings as a matter of course.  

As the Court of Appeal eschewed general guidance, we do not seek to give such here. Some points do appear, however.  There was acceptance by C that attendance in the earlier stages when the scope and nature of the rehabilitation is being fixed will be easier to justify than attendance later on when the machine has already been set in motion [60].  Recovery of costs will be far from automatic, so the solicitor will have to ask whether attendance at any given meeting will prove of real use and service in ensuring that an appropriate rehabilitation regime is put in place or enabled to continue.  The use may lie in ensuring enough case management and rehabilitation but equally in avoiding excessive input, since that may lead to C failing to recover past expenses in full as in Loughlin v Singh [2013] EWHC 1641(QB).