Manna v Manchester University Hospitals NHS Foundation Trust

On a renewed application for permission to appeal, permission may be granted where the proposed ground presents serious grounds for arguing that the lower court erred in principle. A challenge to the choice between standard-basis and indemnity costs may justify permission where the issue has wider importance in light of recent appellate decisions and procedural developments. The court may grant permission on a previously refused ground while leaving permission on other grounds unchanged.

The claimant suffered severe disabilities following incidents at birth and brought claims against the defendant health authority. At a quantum trial before Cox J in June 2015, the judge made findings concerning accommodation and future care and ordered the defendant to pay costs on the indemnity basis from 11 June 2015.

The defendant obtained permission to appeal on two accommodation grounds, but permission was refused on the ground challenging the indemnity-costs order. It renewed that application, arguing that the claimant’s offer had been made shortly before trial, after late disclosure and changes to the case, and that the judge had erred in treating the conduct of the defence as justifying indemnity costs. The central issue was whether permission should be granted on that costs ground.

1. Application granted. On reconsideration of the paper decision, permission to appeal was granted on ground four, concerning the order for indemnity costs from 11 June 2015. The court did not determine the merits of the proposed appeal.
2. The judge’s initial view was that the costs decision was a proper exercise of discretion with which the Court of Appeal would not interfere. Following oral submissions, however, there were serious grounds for arguing that the judge had erred in principle by awarding indemnity costs rather than costs on the standard basis.
3. The court took account of the circumstances surrounding the claimant’s offer, including its timing shortly before trial, the defendant’s receipt of substantial fresh disclosure and changes in the claimant’s case. It also considered the arguments concerning the judge’s criticisms of the conduct of the defence.
4. The question whether costs should be assessed on the standard or indemnity basis was of growing importance because of recent Court of Appeal decisions and the interaction between costs rules and wider developments in civil procedure. That consideration supported granting permission.
5. Permission remained refused on ground one, which the defendant accepted. Permission had already been granted on grounds two and three.

• Court of Appeal (Civil Division): [2016] EWCA Civ 666. Permission to appeal had initially been granted on grounds two and three and refused on grounds one and four. On renewal, permission was granted on ground four. The merits were not decided.
• High Court of Justice, Queen’s Bench Division: Cox J conducted the June 2015 quantum trial and ordered indemnity costs from 11 June 2015, with earlier costs assessed on the standard basis.