Kerry Underwood

FIXED COSTS AND INTERIM APPLICATIONS: A WRONG DECISION

leave a comment »


I deal with this matter at length in my book Personal Injury Small Claims, Portals and Fixed Costs running to 1,300 pages and three volumes, available for £80.00 including P&P from Amazon here or me here.

You can now book onto my Fixed Costs Autumn Tour – here

In Skowron V Rollers Roller Disco Limited, Truro County Court, 8 June 2017, Claim Number C00EX746

a District Judge considered the level of fixed costs on an application for pre-action disclosures in a personal injury claim.

Such applications are covered by the fixed costs regime as interim hearings – see Sharp v Leeds City Council [2017] EWCA Civ 33.

Thus the issue here was the level of such costs. The original application for pre-action disclosure was dealt with on the papers, that is with no advocate attending.

 

The relevant law is CPR 45.29H which reads:

“(1) Where the court makes an order for costs of an interim application to be paid by one party in a case to which this Section applies, the order shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A.”

 

Table 6 and Table 6A form part of CPR 45.18 and by virtue of CPR 45.18(2) Type A fixed costs means the legal representative’s costs and Type B fixed costs means the advocates costs.

CPR 45.18(4) provides that subject to CPR 45.24(2) the court will not award more or less than the amounts shown in Table 6 or 6A, that is the costs are fixed.

CPR 45.24 deals with failure to comply with the relevant protocol and the costs consequences and is not relevant here.

Type A fixed costs are – £250.00.

Type B fixed costs are – £250.00.

Half of £250.00 is –       £125.00.

As there was no advocate’s costs in this case, then it is obvious that the correct fee was £125.00.

Bizarrely, the judge held that even where there was no advocacy the Type A and Type B costs had to be added together to form £500.00 and then halved, meaning that the fee payable was £250.00.

Comment

I report this decision as it has been reported elsewhere as important.

It is as wrong and illogical a decision as I have ever seen.

Very obviously had it been the intention that a fee of £250.00 should be awarded then the rule would simply refer to Type A costs, which are £250.00, or Type B costs, which are also £250.00.

This judge apparently believed that the rules intended you to add two things together and then halve them to arrive at the original figure.

Why not do that for all fixed costs?

Thus instead of having a road traffic portal fee of £500.00 let’s have a rule which says:

“The portal fee in a road traffic accident case shall be one tenth of the fixed fee multiplied by 10.”

A flavour of the quality of this decision can be gained by this sentence from the judgment:

“In so doing, I think he overlooked, and his attention was not drawn to, the decision of Sharp v Leeds, the judgment given, I believe, by Lord Justice Jackson in the Court of Appeal….”

Given that this is a Court of Appeal judgment directly on point, one would have thought that the judge would have looked at it, read it, given the correct citation, and applied the law.

This decision should be ignored. It will not be followed.

Advertisements

Written by kerryunderwood

August 31, 2017 at 11:54 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: