The High Court has said it will consider lump-sum payments on account of costs in DePuy hip claims that proceed to judgment, while refusing a general practice direction and declining to add costs terms to settled cases.
In a judgment delivered on 22 February 2017, Mr Justice Cross ruled that Order 99, rule 5 of the Rules of the Superior Courts allows a court, after determining a case, to order payment of part of the costs before taxation. Any such order must be considered case by case; a general order covering claims before they are determined would not be justified.
The applications were brought by solicitors representing plaintiffs in actions against DePuy International Limited. The plaintiffs alleged injuries caused by defective implanted hips. Their solicitors sought payments on account of costs and mandatory arbitration of costs. Counsel for the applicants conceded that the court had no jurisdiction to impose mandatory arbitration, leaving the payments issue for decision. A separate request to amend the alternative dispute resolution scheme was not pursued at that stage.
The judge accepted that delays in costs taxation created hardship. He noted that plaintiffs’ cases were generally defended, often requiring expensive foreign experts, and that plaintiffs might have difficulty knowing how much of a settlement or award would be needed to meet expenses their solicitors had committed to pay. He did not decide competing submissions that DePuy had deliberately delayed taxation or that plaintiffs’ solicitors had submitted inflated bills, saying there was insufficient evidence to resolve the dispute.
The court held that Order 99, rule 5 did not allow it to impose additional costs terms on settlements. It left open whether an exceptional constitutional situation might justify intervention, but found the applicants’ affidavits did not establish such circumstances. It also said terms could not be imposed retrospectively on cases already settled.
For DePuy cases that proceed to a determination with an order for costs, the judge said both sides should provide short submissions on the costs claimed and the plaintiffs’ committed outlay. The matter would be listed for mention about three weeks after judgment. He would then decide whether a fixed ex gratia sum should be paid to plaintiffs’ solicitors, subject to an undertaking to repay any amount exceeding the costs ultimately allowed by taxation or agreement. He said the sum would vary by case and would not approach 80 per cent of the claimed costs.
The judge refused the relief sought in the motions. The process he described applies to cases he determines; it does not create an order for payments on account in settled claims.