Fixed Costs and Resolving Disputed Parts

Nema v Kirland [2019] EWHC B15 (Costs)

… in the context of fixed costs under Section IIIA Pt 45 (low value personal injury claims).

Even fixed costs can give rise to disputes between solicitors. If that happens, any application to deal with the disputed elements is by way of a Pt 23 Application, per Pt 36.20(11) and Pt 45.29H (and not by serving a bill of costs with a view to detailed assessment and thereby conflating the stakes). Commencing detailed assessment proceedings will result in a strike out.

“45. As for the procedure to be followed under CPR 36.20(11), although CPR 36.20(12) refers expressly to costs payable to a defendant it is evident from that provision that the court is under CPR 36.20(11) required to make an order which determines the amount of costs due, whether to a claimant or a defendant. That is neither summary assessment nor detailed assessment. It is a different, self-contained procedure. CPR 44.6 (which excludes orders for fixed costs and is subject to “any rule, practice direction or other enactment”) and the provisions of Practice Direction 44, addressing the choice between summary and detailed assessment, have no application. Any issues will be limited, as will the amount in issue. There is no need for a judge who has dealt with the case to deal with the costs dispute: as Mr Hogan says, where settlement has taken place under Part 36, it is unlikely that a judge will have dealt with the case.” [Master Leonard]

One can see the sense in this decision; it avoids the costs of resolving costs disputes in fixed costs cases proving more expensive than handling the underlying claim.

Master Leonard also observed:

  • The term “costs” is not always inclusive of “disbursements” where the context so requires;
  • There is no “deemed costs order” per Pt 44.9;
  • The suggested procedure is neither a form of summary nor detailed assessment.

“Fixed costs” does not actually mean the costs are entirely fixed; there is room for disagreement. There are elements of costs that are actually fixed (1), others to be calculated with a fixed formula (2), disbursements that are fixed as recoverable but the amount is open to dispute (3), others that are not fixed at all (4) and there there is also scope to justify entirely falling out of the fixed costs regime (5).

Looking at Table 6B, Pt 45.29C:

(1) and (2)

C. If the claim is disposed of at trial
Fixed costs. The total of—
(a) £2,655 (1); and
(b) 20% of the damages agreed or awarded (2); and
(c) the relevant trial advocacy fee (2)

Looking at 45.29I:

(1) Subject to paragraphs (2A) to (2E), the court—

(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but

(b) will not allow a claim for any other type of disbursement.

(2A) In a soft tissue injury claim started under the RTA Protocol, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—

… (3):

(c) obtaining medical records: no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total for each set of records required. Where relevant records are required from more than one holder of records, the fixed fee applies to each set of records required (3);

… (4):

(2C) The cost of obtaining a further report from an expert not listed in paragraph (2A)(b) is not fixed, but the use of that expert and the cost must be justified (4).

…(5):

45.29J

(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

Claimant 1 Defendant Insurer 1

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