The Supreme Court Costs Office

No. 21 of 2005

Sheppard v Essex Strategic Health Authority

13 May 2005

Mrs Justice Hallett (as she then was) Sitting without Assessors

This was an appeal against a costs capping order made by Master Ungley in which twins both injured at birth and brought proceedings arising from the alleged negligence of the defendants. They were represented by a very experienced firm of solicitors in Essex whom the Judge was happy to accept would not knowingly run up costs unnecessarily nor through lack of experience would incur costs unnecessarily.

The Judge accepted that there was a risk that costs might escalate unreasonably unless a capping order was made and accordingly the Judge upheld the Master’s decision as being well within his reasonable discretion. She then referred the matter to the Costs Office for the quantum of the cap to be assessed, preferably by the Chief Costs Judge.

It is very clear from a reading of the full Judgment in this case that any lingering uncertainties as to whether a costs capping order should be made in clinical negligence cases because of the conflict or apparent conflict between Ledward Claimants v Kent and Medway Health Authority [2004] 1 Costs LR101 and Smart v East Cheshire NHS Trust [2004] 1 Costs LR 124 has been resolved in the favour of a costs capping order in virtually every case. It is clear that her Ladyship was greatly assisted in reaching her conclusion by the direction of Lord Justice Brooke in Musa King v Telegraph Group Limited [2005] 1 Costs LR 449.