Case comment: Andrews v South Tees Hospitals NHS Foundation Trust

Published 15 agosto 2017

A Claimant was ordered to pay the Defendant's costs of dealing with an application to extend time for service of proceedings, in circumstances where the Claimant had protectively issued the claim without first asking if a limitation amnesty could be agreed.

The Claimant, who had instructed solicitors close to the primary limitation period expiring, sought to extend time to serve her claim as she was still not ready to proceed four months after issuing. The Defendant agreed to allow more time, but asked that the Claimant bear the Defendant's costs of the application. The Claimant offered 'no order as to costs' but the Defendant refused and the matter went to a hearing before District Judge Morgan at Newcastle County Court.

At the hearing the Claimant made submissions that the costs of the hearing be borne by the Defendant or be in the case, as the extension of time would have been mutually beneficial for the parties to comply with the pre-action protocol and the hearing and associated costs could have been avoided if the Defendant had agreed no order as to costs.

The Defendant submitted that the Claimant should pay the costs of the application, because no limitation amnesty was requested by the Claimant, despite it being clear there was enough time to have done so. The reason no amnesty was sought was solely due to the fact it was not the Claimant's solicitors policy to request amnesties, but to protectively issue instead.

The Defendant submitted that the Claimant's solicitor's policy was wasteful and against the overriding objective to save unnecessary cost.

DJ Morgan agreed that it would have been sensible and proportionate to seek a limitation amnesty and therefore the Defendant was right to seek its costs of the application and ordered that the Claimant pay the Defendants costs.