Kerry Underwood

FIXED COSTS TRUMP CONSENT ORDER

with 2 comments


In Bratek v Clark-Drain Ltd – Case No B31YM002 – Cambridge County Court, 30 April 2018

Cambridge County Court, on appeal from a District Judge, was considering the interpretation of a consent order in relation to costs in a personal injury claim subject to fixed recoverable costs.

The matter had been in the EL/PL portal but had come out because liability was not admitted and was then set down for a fast track trial and was settled the day before the claim was due to be heard.

The consent order provided that the defendant do pay the claimant £10,000 in full and final settlement with the defendant to pay the claimant’s solicitor’s costs, on the standard basis, to be assessed if not agreed.

The claimant argued that this meant that this agreement took the matter outside the fixed costs regime, whereas the defendant said that that order left the matter subject to fixed recoverable costs.

The claimant’s argument was that the agreement should be construed on the basis that the parties had agreed that the fixed costs regime would not apply.

Here neither party had addressed themselves to the issue of whether there were exceptional circumstances for escaping fixed costs as set out in CPR 45.29J, and thus that was not an issue.

Here the judge held that the provisions of CPR 45.29D are mandatory and it is not possible for the parties to contract out of those provisions, and consequently unless CPR 45.29J, in relation to exceptional circumstances, applied, then in a fixed recoverable costs case the recoverable costs are indeed fixed.

Thus a consent order providing for costs to be assessed on the standard basis if not agreed, makes no difference at all.

Comment

A correct decision.

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Written by kerryunderwood

June 20, 2018 at 12:12 pm

Posted in Uncategorized

2 Responses

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  1. There is a bit of further background to this case, in particular that over a year prior to the settlement the claimant had made a part 36 offer of £10,000, the same amount at the eventual settlement reached the day before trial.

    In Solomon v Cromwell the Court of Appeal said it was possible for the parties to agree whatever they liked to settle a case, including on costs, so the ruling that it is not possible to contract out of fixed costs is questionable. However, the judgment is to the effect that the agreed order did not in fact contract out of fixed costs (whether or not doing so is possible), so there is a lesson to be learned that agreeing standard basis costs is not necessarily going to be seen as enough to contract out.

    Richard

    July 2, 2018 at 4:12 pm

    • Richard
      It seems to me, although not to everyone, that standard costs in a fixed costs case means fixed costs and that there must be stronger and clearer wording to achieve a contracting out, which I agree is possible.

      I am aware of one case of late acceptance of a claimant’s Part 36 offer in a fixed costs case, where the court ordered standard, not fixed, costs, clearly on the basis that they are different creatures.

      Some clarity and certainty would be welcome.

      Thanks for commenting.

      Kerry

      kerryunderwood

      July 4, 2018 at 5:24 pm


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