Over the weekend I heard two speakers on costs budgeting mention my view that costs budgeting may not now apply to fatal accident claims where children are dependants. Given the potential significance of this, it is worth expanding my concerns.
THE NEW RULE
The new rules came into force on the 6th April 2016.
EXEMPTION FOR CHILDREN FROM COSTS BUDGETING
5. In rule 3.12(1), for subparagraph (c), substitute—
“(c) where in proceedings commenced on or after 6th April 2016 a claim is made by or on behalf of a person under the age of 18 (a child) (and on a child reaching majority this exception will continue to apply unless the court otherwise orders);
or (d) where the proceeding are the subject of fixed costs or scale costs; or
(e) the court otherwise orders.”
WHAT IS MEANT BY “ON BEHALF OF”?
Identifying an action “made” by a child is not difficult. The problem is what is meant by “on behalf of” a child.
IDENTICAL WORDING IN THE FATAL ACCIDENTS ACT 1976
Section 2(4) of the Act imposes an obligation on a person bringing a Fatal Accident Act claim to state “on whose behalf” the action is brought.
“Persons entitled to bring the action.
(1)The action shall be brought by and in the name of the executor or administrator of the deceased.
(a)there is no executor or administrator of the deceased, or
(b)no action is brought within six months after the death by and in the name of an executor or administrator of the deceased,
the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it.
(3)Not more than one action shall lie for and in respect of the same subject matter of complaint.
(4)The plaintiff in the action shall be required to deliver to the defendant or his solicitor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered”
A CLAIMANT IN A FATAL ACCIDENT ACTION CAN BRING AN ACTION ON “BEHALF” OF CHILD DEPENDANTS
This means that each dependant does not have to be named as a claimant. The administrators, executors, or (in relevant circumstances*) any one of the dependants, can bring an action on behalf of all the dependants.
The problem of the “hybrid” claim: fatal accidents involving adult and child dependants
When a child is the only dependant there should be no difficulty. The claim is clearly being brought by or on behalf of a child. However a fatal accident claim often involves a claim on behalf of adult claimants in addition to children.
The issue that requires clarity is whether this exception only applies when an action is brought exclusively on behalf of a child. It is not clear what the position is when a child is one of the dependants but the other dependants are not children.
THE RULE AND THE STATUTE USE THE SAME TERM: “BEHALF”
It may be significant that the same term is used in both the rule and the statute.
WHAT CAN BE DONE ABOUT COSTS BUDGETING?
There are a number of options when a fatal accident action is issued on behalf of the
- The parties can file costs budgets and be told they are wholly unnecessary. (There is a waste of costs, court time and resources).
- The parties (or one of the parties) may decide not to file costs budgets and facE the risk that they may recover no costs. (There will be some anguish and anger).
ELIMINATING RISK: ASK THE COURT TO DETERMINE THIS ISSUE AT AN EARLY STAGE
Until we get total clarity on this issue I would advise a cautious approach. The parties are best advised to state in the Directions Questionnaires that this is a claim which includes a child dependant. The draft directions should include, specifically, an order that the claim is not subject to costs budgeting.
Further in section I “Other information” when the parties are asked to “set out any other information you consider will help the judge to manage the claim” it would be prudent to state that the claim includes a claim being brought on behalf of a child dependant and that costs budgeting should not apply.
If a party was being wholly prudent (and they should be) it would be wise to include a proviso.
“One of the dependants is a child. CPR 3.12(1)(c) excludes an action brought “on behalf” of a child from costs budgeting. To prevent unnecessary costs being incurred the court is asked to make a specific direction as to whether the parties are required to file costs budgets”.