The current fixed costs regime has been in place for coming up to ten years now. In this relatively short period of time there have been a number of cases go to the Court over disputes concerning fixed costs. Below is a roundup of the some decisions relating to fixed recoverable costs:-
- Aldred v Cham [2019] EWCA Civ 1780
Held that the costs of obtaining Counsel’s Advice in Infant Cases is not recoverable under CPR 45.29I as a disbursement as the fact the Claimant is a minor is not a “particular feature of the dispute”.
- Finsbury Food Group PLC v Dover [2020] EWHC 2176 (QB)
Held that the costs of obtaining Counsel’s Advice on quantum was recoverable under CPR 45.29I and the costs of that advice were not limited to the costs in Table 6B at CPR 45.23B. This ruling is a common sense approach given CPR 45.29I(2)(c) which refers back to the Protocols.
- Hislop v Perde [2018] EWCA Civ 1726
Held that where a Part 36 offer had been accepted late by a Defendant that did not give rise to an automatic entitlement to anything above Fixed Recoverable Costs, CPR 36.20 applied instead of CPR 36.13, not alongside it. However it was still open to the Claimant to seek the Court’s input on exceptional circumstances under CPR 45.29J.
- Coleman v Townsend [2020]
Held that Counsel’s Brief Fee and Skeleton Argument Fee were not recoverable when the matter settled the day prior to the Hearing.
- Doyle v M&D Foundations & Building Services Limited [2022] EWCA CIV 927
Held that parties could contract out of Fixed Recoverable Costs when the parties had agreed to a Detailed Assessment of the costs within the Consent Order.
- Qadar v Esure Services Ltd [2016] EQCA Civ 1109
Held that where a case had been started via the Portal Process, the Fixed Costs were not to apply when the matter had been allocated to the Multi Track. (N.B. this decision is now enshrined within the CPR 45 Section IIIA rules.)
- Nema v Kirkland [2019] EWHC B15 (Costs)
Held that the correct approach when seeking to resolve a dispute regarding the Fixed Recoverable Costs was to issue an Application where the claim had settled by way of CPR 36.
- Broadhurst v Tan [2016] EWCA Civ 94
Held that where a Claimant had beaten their Part 36 offer at Trial and Indemnity Basis costs were appropriate, the Indemnity Basis costs were to be assessed on an hourly rate basis, not assessed at a sum which was the same as the Fixed Recoverable Costs.
- Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC)
Held that where there were two Claimant’s to a claim, each Claimant was entitled to the Fixed Recoverable Costs, providing they had both submitted a Claims Notification Form.
- Harford v Music Store Professional UK/DV247 Ltd [2021] EWHC B17 (Costs)
Held that where the Claimant had failed to use the Portal Process [send a Claims Notification Form] and that failure was unreasonable then the costs were to be limited to the Fixed Costs under CPR 45.18.
- Sharp v Leeds City Council [2017] EWCA Civ 33
Held that the Fixed Recoverable Costs for Interim Applications at CPR 45.29H apply to Pre-Action Disclosure Applications.
The snippet of cases provides examples that the implementation of the Fixed Recoverable Costs regime did not simplify matters, but in fact led to further litigation to seek interpretation of the rules. Further, there is a clear theme to be taken away from the decisions, being that the Defendant insurer is usually the party seeking the decision, as the Insurer has practically unlimited funds and if they were to win a case to save £100 – £200, that saving would probably be across hundreds of cases, with the savings soon adding up.
Further, another potential issue is that following the case of Doyle we envisage Defendant’s refusing to agree to a Consent Order on the same terms as that case, when they could make a Part 36 offer putting the Claimant under risk. Or would the parties want to agree the quantum of the case and then seek determination under CPR 45.29J as to whether there are exceptional circumstances to justify sums greater than the Fixed Recoverable Costs? Time will tell, indeed there have been cases recently which address the issue of exceptional circumstances, however this point is mainly case specific as one can imagine.
As can be seen from the above, the introduction of Fixed Recoverable Costs has not been as straight-forward as people thought it would be. That being said further fixed costs are on the horizon, with implementation set for April 2023. The proposed plans for these new Fixed Recoverable Costs are much more far reaching than the current Fixed Recoverable Costs as they are to apply to most cases up to £100,000.00.
According to the Government it was always the plan to implement extended fixed costs once the current format of fixed costs were given time to become “properly embedded in the legal system”.
Finally, it is worth considering that the implementation of Fixed Recoverable Costs does not always mean the previous rules do not apply. As can be seen in the case of West v Burton [2021] EWCA Civ 1005, where it was held that whilst Sections III & IIIA did not apply, Section II applied and thus the Claimant was limited to the “old” Predictive Costs.