Kerry Underwood

STANDARD COSTS MEANS FIXED COSTS: COURT OF APPEAL DECISION

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Ho v Adelekun [2019] EWCA Civ 1988

the Court of Appeal reinstated the decision of the Deputy District Judge that fixed costs continue to apply to a claim unless and until it is allocated to the multi-track and thus overturned the decision of the Circuit Judge on appeal.

This was a personal injury claim subject to the fixed recoverable cost scheme and the claimant accepted the defendant’s offer of £30,000 and which stated:

“If the offer is accepted within 21 days, our client will pay your client’s legal costs in accordance with Part 36 Rule 13 of the Civil Procedure Rules, such costs to be subject to detailed assessment if not agreed.”

The day after making the offer it was agreed that the matter be transferred from the fast track to the multi-track, but re-allocation never occurred as the offer was accepted before it could take place.

Had the matter been re-allocated to the multi-track, then the claimant would have been entitled to open, unfixed costs following the decision in

Qader v Esure Services Ltd [2016] EWCA Civ 1109

Here, the parties agreed a Tomlin Order stating:

“The defendant do pay the reasonable costs of the claimant on the standard basis to be the subject of detailed assessment if not agreed…”

The Deputy District Judge held that the action was subject to fixed recoverable costs, but on appeal a Circuit Judge held that fixed costs did not apply.

Here the Court of Appeal reinstated the decision of the Deputy District Judge.

The Court of Appeal said that for the sake of clarity:

“…parties who wish to settle on terms that fixed costs will be payable would be well advised to avoid reference to assessment “on the standard basis” in any offer letter or consent order which may be drawn up following acceptance of an offer.”

The correct reference in a fixed costs case is to CPR 36.20, and not CPR 36.13, although the Court of Appeal held that that did not affect the outcome in such cases.

 

Comment

In my blog on the Circuit Judge decision in this matter I commented as follows:

There are no score draws at court, or in my blogs.

On balance, but we are talking 51-49, my view is that the Deputy District Judge was right, that the Circuit Judge was wrong, and that the Court of Appeal should reinstate the Deputy District Judge’s decision, that is that fixed costs apply.

See my blog –

CONSENT ORDER TRUMPS FIXED COSTS

 

Written by kerryunderwood

November 28, 2019 at 11:02 am

Posted in Uncategorized

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