Hadley v Przybylo [2024] EWCA Civ 250 – the Court of Appeal’s decision on a fee earner’s attendance at rehabilitation meetings

A&M Bacon reported on the High Court decision on this case in June 2023.

The case was leapfrogged to the Court of Appeal leading to the judgment of Hadley v Przybylo [2024] EWCA Civ 250.

The case relates to a litigation claim, although the outcome will also be of importance to Court of Protection practitioners who attend MDT meetings and spend time liaising with case managers.

A reminder on the High Court decision

The Defendant disputed that the fee earner’s attendance at rehabilitation case management meetings and attendances with Court of Protection deputies were not recoverable costs. This dispute was raised at the costs budgeting stage.

The decision by the Master related to future costs only. The Claimant had sought some £68,400 comprising of costs for attending case management meetings (60%) and costs for meetings with deputies (20%). The Master allowed just £20,000 on the basis that having a fee earner attend rehabilitation meetings was not progressive and did not fall within the notion of costs. Furthermore, the Master advised that a fee earner attending on deputies so as to seek input into the ongoing drafting of the schedule, when deputies do not properly play a part in such work, is not progressive.

Court of Appeal decision

The following grounds were appealed:

• Ground 1: the applicable test as to recoverability
  • The Master applied a test of whether the costs were ‘progressive’ or ‘non-progressive’.
• Ground 2: are the costs of attendance recoverable in principle?
  • It was the Claimant’s case that the cost of attendance at rehabilitation case management meetings (and attendance on deputies) is a recoverable cost in principle, and that the Judge was wrong to rule otherwise.

The Court of Appeal allowed the first ground in that the costs may be recoverable as being ‘incidental’ costs within the meaning of s51 of the Senior Courts Act 1981, but not ‘progressive’.

In terms of the second ground, the Court of Appeal found that there were two issues to be addressed. First, is this element of costs recoverable in principle? Secondly, if it is, are there any limits that this court should place on its recoverability at this stage, or should those be addressed on assessment?

The Court of Appeal advised that the costs were recoverable in principle and went on to state the reasons for this. It was concluded that:

‘It would be wrong to decide that the costs of the solicitors’ attendance at rehabilitation case management meetings are always irrecoverable. Equally, it would be wrong for the claimant’s solicitor to assume that routine attendance at such meetings will always be recoverable. It will always depend on the facts.’

It was held that the figures claimed were plainly open to challenge and there was no such default or blanket entitlement.

In light of the above, ground 2 was allowed, but with the potentially large caveat.

Summary

In summary, the case does not provide an automatic entitlement to incur significant costs in attending all MDT meetings, it will be specific to each case.

It is clear, however, that going forward, justification will need to be provided for attending such meetings and that the costs claimed will need to be reasonable and proportionate to the matter.

Future application of the above decision on Court of Protection claims

We have already seen that the Senior Courts Costs Office (Court of Protection Section) can be reluctant to allow significant costs in relation to liaising with the case manager on the basis that the case manager is appointed to mitigate such costs.

In terms of the deputy’s attendance at MDT meetings, we would strongly advise that a detailed record of the reasons as to why the deputy considered it prudent to attend is provided within the file for inclusion within the bill of costs. It will also be necessary to consider if the attendance is necessary and in P’s best interests.

The Court of Appeal decision makes it clear that costs will not automatically be allowed, nor will they automatically be disallowed.  The emphasis appears to be on proportionality and any costs being claimed in respect of MDT meetings/liaising with the case manager will need to be proportionate and the attendance necessary for the costs to be allowed.

It will be interesting to see the application of this Court of Appeal decision on matters going forward. We will continue to monitor and advise on a case by case basis as to how to proceed to maximise costs recovery.

We do hope you will have found this short article to be of interest.  Should you have any queries in relation to this or any other costs-related matter, please do not hesitate to contact us.