This costs decision followed the substantive quantum trial of Mathieu v (1) Hinds (2) Aviva Plc [2022] EWHC 924 (QB) which concerned a claim by an artist who suffered a traumatic brain injury in a road traffic accident. It was listed for a 10-day quantum only trial before Mrs Justice Hill in February 2022.  As reported in our previous article, the Claimant recovered substantially reduced (but still substantial) damages and provisional damages in respect of epilepsy; but failed to recover provisional damages in respect of dementia.

This result gave rise to significant arguments.  Hill J held that the Claimant’s costs recovery should be limited to 85% of their costs up until 31 January 2022 and to 40% thereafter (i.e. Hill J ordered reductions of 15% and 60%, respectively).

The reasoning, in summary, was as follows:

(1) In respect of costs up to 31 January 2022, the Second Defendant’s success on the dementia issue warranted a 15% reduction.

(2) In respect of costs from 1 February 2022, a 60% reduction was warranted to reflect the following:

  1. The Claimant had failed to beat the Second Defendant’s Calderbank offer of £3,550,000 made on 11 January 2022 (4 weeks before trial), notwithstanding that this did not include an award for provisional damages for epilepsy.
  2. The Claimant failed by an even greater margin to beat the Second Defendant’s further Calderbank offer of £4,000,000 made on Saturday 5 February 2022 before the trial started on Tuesday 8 February 2022.
  3. The points in respect of dementia which warranted a 15% reduction in the earlier period continued to apply in this later period.
  4. The Claimant’s pleaded case was unrealistic. He recovered less than 10% of the pleaded value of his claim, despite having succeeded on all the factual points underpinning the earnings claim.
  5. The Claimant’s offers were also unrealistically high.
  6. By contrast, the Second Defendant had taken a much more realistic approach.

For a fuller analysis see our Cost Blog.

Click here for the full judgment.

Marcus Dignum QC, Hugh Hamill and (in respect of the costs arguments) Andrew Roy represented the Second Defendant.  They were instructed by Steve King and Olly Bowes-Smith of DWF Law LLP.