Bassey v Whittaker: No Budget Variation Without a Significant Development [2026]
Costs Budgeting — 2026-08-10
In Bassey v Whittaker [2026] EWHC 2126 (KB), Cavanagh J held that, absent agreement, a costs budget cannot be revised under CPR 3.15A without a significant development. The decision gives practical guidance on foreseeability, Precedent T and the later good reason test.
Overview
Date: 10 August 2026
Judge: Mr Justice Cavanagh
Court: High Court of Justice, King's Bench Division, Birmingham District Registry
Citation: [2026] EWHC 2126 (KB)
Case number: KA-2026-BHM-000013
Nature of Proceedings: Appeal concerning the jurisdiction to revise an approved costs budget under CPR 3.15A
Key Issues:
- Whether a costs budget can be revised when there has been no significant development
- Whether directions requiring Precedent Ts amounted to an agreement that the budgets would be revised
- What makes a development significant for the purposes of CPR 3.15A
- Whether foreseeable further expert evidence, rehabilitation changes, trial delay and additional disclosure justified a variation
- The relationship between a budget variation and a later good reason argument under CPR 3.18
---
The Decision
Bassey v Whittaker, reported as [2026] EWHC 2126 (KB), is a 2026 King's Bench Division decision on the jurisdiction to revise an approved costs budget. Mr Justice Cavanagh held that, at least where the parties have not agreed otherwise, a significant development is a necessary precondition to variation under CPR 3.15A. The court cannot increase a budget merely because additional work has arisen or because an increase appears fair.
The claimant had sought an additional £238,350 through Precedent T. A District Judge found that there had been no significant development but nevertheless directed a further hearing to determine the amount of the increase. He believed an earlier consent order had already authorised revision of the budgets.
The High Court held that the earlier order had done no such thing. It merely required the parties to prepare Precedent Ts so that the threshold and any proposed revisions could be addressed at the next hearing. In the absence of a significant development, the District Judge had no power to order a variation. The insurer's appeal was allowed.
---
The Underlying Claim and Costs Budgets
The claimant, Mr Ndifreke Bassey, suffered very serious injuries when he was struck by a car driven by the first defendant. He became a protected person and conducted the litigation through his wife and litigation friend, Andreia Bassey. The second defendant, Watford Insurance Company Europe Limited, conceded liability. The proceedings continued to determine damages.
At the case and costs management hearing on 18 December 2024, the claimant's Precedent H claimed total incurred and estimated costs of £1,981,163.55. Following costs management, the recorded total was £1,028,580.85. The court also recorded that the claimant's incurred costs were disproportionate. The insurer's budget was agreed at £341,382.01.
The court gave extensive directions for medical and non-medical expert evidence, witness statements, rolling disclosure and schedules of loss. The trial was estimated at 10 days. The order recorded that neither party's budget included the attendance of experts at trial.
The original trial window was subsequently extended to 19 March 2027 because the parties had no common availability. At a hearing on 27 November 2025, a consent order varied the timetable for expert evidence, increased the frequency of rolling disclosure, permitted two additional quantum statements and extended the dates for schedules of loss.
The same order required the parties to file Precedent Ts to address the increased costs associated with those amendments. The claimant then sought an additional £238,350.
At the hearing on 6 February 2026, District Judge McLoughlin found that the amendments were not significant developments within CPR 3.15A. He nevertheless considered that the budgets could still be increased because the earlier consent order had required Precedent Ts. He directed a further hearing on quantum. Watford Insurance appealed.
---
Key Holdings
1. A Significant Development Is a Necessary Precondition
CPR 3.15A requires a party to revise its budgeted costs upwards or downwards if significant developments warrant revision. The proposed variation must be submitted promptly, first to the other parties and then to the court. The court may approve, vary or disallow it.
Cavanagh J followed Persimmon Homes Ltd v Osborne Clarke LLP [2021] EWHC 831 (Ch). Master Kaye had described a two-stage process. The applicant must first satisfy the significant development and promptness requirements. Only then does the court consider how to exercise its discretion over the proposed amount.
The High Court rejected the argument that CPR 3.15 gave the court a general residual power to vary a finalised budget whenever it considered this appropriate. At [60], Cavanagh J stated:
> "The court does not have a general discretion to vary costs budgets."
The significant development requirement is therefore jurisdictional. Additional expenditure, changed directions or apparent fairness cannot replace it. Even where the threshold is met, revision is not automatic. The court retains its discretion to approve, vary or disallow the proposed additional costs.
2. A Direction to Prepare Precedent T Does Not Decide the Threshold
The order of 27 November 2025 required the parties to file Precedent Ts and listed a further costs management hearing. It did not state that the parties had agreed there were significant developments. Nor did it state that the budgets would be revised.
Cavanagh J held that the direction was neutral. The forms were required so they would be available if the court subsequently found that there had been a significant development and decided that revision was appropriate. Preparing the procedural document did not predetermine either question.
The contemporaneous evidence reinforced that conclusion. The insurer's counsel had resisted the claimant's attempt to record a significant development. The claimant then filed evidence before the February hearing specifically seeking to establish that threshold. Both parties made submissions on it. Their conduct was inconsistent with any earlier agreement that the issue had already been resolved.
The District Judge had mistakenly believed that his earlier consent order bound him to permit variation. The objective meaning of the order, rather than the judge's later recollection of it, governed the position.
3. Significance Depends on Objective Foreseeability
The Civil Procedure Rules do not define a significant development. The judgment makes clear that not every change in litigation is sufficient. Costs budgeting is a broad-brush exercise, not a prospective detailed assessment. Changes in estimates and assumptions are to be expected.
Drawing on Persimmon Homes, Cavanagh J held at [79] that the test is whether the development was not, and could not reasonably have been, anticipated by the applicant when the previous budget was approved. A variation cannot be used to repair a budget which failed to provide for work that could or should have been addressed earlier.
This is an objective test. A party's assumptions are evidence of what the budget covered, but their wording cannot convert an objectively foreseeable event into a significant development. The court considers the nature of the litigation, the information available when the budget was set and the work which could reasonably have been anticipated.
The assessment is also fact-specific:
> "Each case depends on its own facts."
Examples from other cases may illustrate the test, but they do not determine whether a development is significant in a different claim.
4. The Additional Work in This Claim Was Foreseeable
The claimant relied on several matters which were said to require further work. These included the extended trial window, amended directions, a move away from a jointly instructed case manager, new rehabilitation and private referrals, a proposed change of accommodation, further expert reports, additional disclosure and two further quantum statements.
The District Judge was entitled to find that these matters were reasonably foreseeable when the budgets were finalised. In a serious personal injury claim, further expert reports and quantum statements were obvious possibilities. The proposed move and likely appointment of a new case manager had already been raised at the original costs management hearing. The experts could reasonably be expected to revisit their opinions as rehabilitation and therapy developed.
Trial slippage and some additional disclosure were also readily foreseeable. The two extra witness statements did not take the claimant beyond the eight statements for which it had originally budgeted.
The High Court stressed that this did not mean those steps involved no extra work. The question was not whether additional costs would be incurred. It was whether the events causing them crossed the CPR 3.15A threshold. On the facts, they did not.
The conclusion was an evaluative judgment. Applying the appellate approach in Churchill v Boot [2016] EWHC 1322 (QB), it fell comfortably within the range of reasonable decisions available to the District Judge. The appeal court would not substitute its own evaluation simply because another judge might have viewed the facts differently.
5. Good Reason at Detailed Assessment Remains a Less Certain Route
The judgment did not leave a party with no possible recourse where additional work falls short of a significant development. At [81], the court recorded the parties' agreement that a receiving party may later ask the costs judge to depart from the approved budget for good reason under CPR 3.18.
That is not equivalent to obtaining a variation. A revised budget gives the parties a new approved figure while the litigation is ongoing. A good reason argument is made retrospectively, after the costs have been incurred, with the original budget still controlling the assessment unless the costs judge is persuaded to depart from it.
Cavanagh J described the later argument as:
> "an uphill battle"
Establishing good reason only permits departure from the budget. It does not make the whole excess automatically recoverable. The additional costs remain subject to assessment for reasonableness and proportionality. The receiving party must also demonstrate the connection between the relied-upon circumstances and the overspend in the relevant phase.
The significant development and good reason tests are not identical. Failure to obtain a variation does not legally determine the later question. However, where the overspend results from ordinary and foreseeable work, the receiving party may struggle to show why the approved phase total should not continue to bind.
6. Agreement and Scheduled Reviews Were Left Open
The High Court deliberately left two issues undecided.
First, Cavanagh J did not determine whether the court can revise a budget without a significant development where all parties genuinely agree that it should. No such agreement existed in this case. The judge observed that parties who agree to a revision will usually also agree that there has been a significant development, making the point unlikely to arise often.
Second, the court did not decide whether the significant development requirement applies to a future budget review expressly directed under CPR 3.15(6). The judge indicated that it may not, because a scheduled review recognises from the outset that final provision cannot yet be made for all future costs. Part-budgeting to a later CCMC is an example.
These reservations matter. They support dealing expressly with genuine uncertainty at the original costs management hearing rather than relying on a later application to vary a budget which was treated as final.
---
Practical Implications
For Costs Lawyers
1. Separate jurisdiction from quantum. A detailed Precedent T does not assist unless the evidence first establishes a significant development. Address the threshold, objective foreseeability, promptness and causation before presenting the revised figures.
2. Confine the variation to the development. CPR 3.15A permits only the additional costs occasioned by the significant development. It is not an opportunity to reopen unrelated allowances or correct an under-budgeted phase.
3. Test assumptions against objective foreseeability. An express assumption helps identify what was included, but it is not conclusive. Consider whether the event was a normal possibility in litigation of that type and what was already known at the CCMC.
4. Preserve the evidence. Record when the development occurred, why it could not reasonably have been anticipated, the additional work it caused and the date on which the proposed variation was served.
5. Prepare for the CPR 3.18 alternative. Where variation is unavailable, maintain phase-specific evidence supporting any later good reason argument. The evidence should distinguish genuinely additional work from ordinary overspend and demonstrate reasonableness and proportionality.
For Litigation Practitioners
1. Treat the original budget as a serious control document. Further expert work, witness updates, disclosure and trial delay should be considered realistically at the outset. A deliberately lean budget may not be repairable later.
2. Use staged budgeting where the future course is genuinely uncertain. If medical prognosis, rehabilitation, disclosure or another major workstream is too uncertain for final budgeting, invite the court to part-budget the case or direct a future review under CPR 3.15(6).
3. Draft variation orders precisely. If the parties agree that a change is significant, the proposed order should record the agreement and set a clear timetable for Precedent T. A bare direction to prepare the form does not establish jurisdiction.
4. Act promptly when an unforeseen event occurs. Do not wait until the additional work has been completed or until detailed assessment. Identify the development, notify the other parties and place the proposed variation before the court without delay.
5. Do not equate changed directions with a significant development. An amended timetable or permission for further evidence may reflect an event that was already foreseeable. The costs test remains separate from the case management decision.
---
Conclusion
Bassey v Whittaker establishes a clear jurisdictional rule. At least in the absence of agreement, a finalised costs budget cannot be revised under CPR 3.15A unless a significant development has occurred. The court has no general discretion to increase the figure simply because additional work has become necessary.
The practical difficulty lies in foreseeability. Serious litigation naturally develops, but ordinary expert updates, rehabilitation changes, trial slippage and additional disclosure may already be implicit in the original budget. Practitioners must distinguish those normal possibilities from events which could not reasonably have been anticipated.
The decision also explains why good reason at detailed assessment is a safety net rather than a budgeting strategy. It leaves the original budget in place and requires a retrospective, fact-sensitive application after the money has been spent. The more reliable course is to budget foreseeable work properly, seek staged budgeting where appropriate and pursue a genuine variation promptly when an unforeseen development occurs.
This analysis is published by Mackenzie Costs for costs lawyers and litigation practitioners dealing with costs management, Precedent T and detailed assessment.
---
Citation: Mr Ndifreke Bassey (a protected person by his wife and litigation friend Andreia Bassey) v Mr Shanardo Travis Whittaker and Watford Insurance Company Europe Limited [2026] EWHC 2126 (KB)
Full judgment available at: Approved judgment PDF
Related Specialist Support
Related Cases
View all case law updates | Our services | Contact us