The defendant costs specialists

Premature witness statements

By on Jan 23, 2018 | 5 comments

The recent decision of Master Leonard in Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) concerned the issue of the recoverability of the costs of attending an inquest.

One particular comment made during the judgment has attracted attention:

“... the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.”

Gordon Excall’s Civil Litigation Brief blog interpreted this as meaning:

“This emphasises the point that there is nothing to lose (and everything to gain) by the careful and early collection of witness evidence.”

It is no doubt correct that the mere fact a matter settles prior to witness statements being served will not of itself prevent recovery of the costs of obtaining them.

However, I am not sure that Master Leonard sought to imply that the costs of obtaining witness statements would always be recoverable regardless of the stage of the claim they were obtained.  It is important to the see the context within which his comment was made:

“one must not use hindsight in applying the Gibson principles. So, for example, the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.”

This is no more than pointing out that hindsight will not usually be applied when assessing costs.  The key issue remains as to whether obtaining witness evidence was reasonable at that point in time.  Obviously, each case is fact specific, but costs are routinely disallowed on detailed assessment on the basis they have been incurred prematurely.

Friston’s Civil Costs correctly summaries the position:

“Speaking of a costs regime long since passed, Lord Hanworth referred to the following extract from a Master’s certificate dealing with material thrown away:

‘We have always acted upon the principle that the costs of all work in preparing, briefing, or otherwise relating to affidavits or pleadings, reasonably and properly and not prematurely done, down to the time of any notice which stops the work, are allowable; and … the Taxing Master, having regard to the circumstances of each case, must decide whether the work was reasonable and proper and the time for doing it had arrived.’

This extract illustrates the fact that it is possible to carry out work prematurely; if the benefit of that work is ultimately thrown away, the costs may be disallowed on the basis that the work ought not to have been carried out until it was known whether there was a need for it.”

So, is there anything to lose by obtaining witness statements at an early stage?  Yes, potentially the costs of that work.

    5 Comments

  1. You can lose the costs, granted, but given that witness evidence is the case itself it is prudent to obtain evidence whilst it is as contemporaneous as possible. Dealing with costs on behalf of Claimants, I often see opportunities missed to get good supportive witness evidence early on. The passage of time leads to obvious memory fading and often potential external witnesses becoming untraceable. It is all very good thinking about costs, but as I said to a Barrister’s clerk recently; lets not worry too much about fees now, we have to win the thing first.

    Realist

    23rd January 2018

  2. It is good practice to secure a statement as early as possible for a host of practical reasons in most cases (although probably not all).

    Sadly, we live in a world where Judges often subscribe to the irreducible minimum theory coupled with a counsel of perfection.

    Easy to do when you’ve never actually been in private practice.

    It’s not enough that a doctor chopped off the wrong leg or killed your Dad; you’re also expected to pay up some of the legal bill on the basis seeking legal redress is a ‘luxury’. It probably was…in 1865. Tt is not now.

    The whole thing has gone bass akward courtesy of the ivory tower bridge, ministers advancing the interests of insurers, and a government whose modus operandi appears to be to save money be stripping innocent parties of their ability to secure legal advice.

    Grumble moan grumble.

    Saying that, Simon is clearly right. I think Mr Exall has ran with that throwaway comment a tad too far.

    Cat Mcsplat

    23rd January 2018

  3. It seems the days of considering what constitutes “….costs of action ” in any concluded matter have long since gone. Inquest costs,being separate matters, now seem swept up into that phrase without much thought,something experienced practitioners in the past would never have conceded

    Functus Officio

    26th January 2018

  4. oh no queue the costs claims now claiming to have prepared witnesses statements on day 1 and amending them on day 2,3 and 7.

    comeonguys

    6th February 2018

  5. I am struggling to think of any circumstances in which the collection of witness evidence from Day 1 could legitimately be criticised as premature.

    Jon Heath

    13th February 2018

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