ORDER FOR COSTS TO BE ASSESSED DOES NOT OUST FIXED COSTS: CIRCUIT JUDGE DECISION

I am grateful to Matthew Hoe of Taylor-Rose  for sending me a copy of the decision of His Honour Judge Yelton in Bratek -v-Clark-Drain Limited (County Court at Cambridge 30th April 2018). A copy is available here Bratek v Clark-Drain Ltd 2018 It is a case that emphasises how difficult it is for a claimant to obtain costs outside the fixed costs regime.

“It seems to me that if one goes back to what was said in the Sharp case as an expression of principle rather than part of the judgment the courts should uphold the restriction on costs set out in part 45 of the CPR save in exceptional circumstances”

THE CASE

The claimant and the defendant settled a personal injury case by a consent order stating that the defendant pay the claimant £10,000 in damages and that “the defendant pay the claimant’s solicitor’s costs of the action, inclusive of VAT and disbursements on a standard basis, to be assessed if not agreed”.

THE DIFFERENT ARGUMENTS

The claimant’s argued that this order meant that they were entitled to their assessed costs. The order superseded the figures set out in CPR 45.29A.  The defendant argued that the order did not superseded CPR 45.29A.

THE DIFFERENCE IN COSTS

If the claimant’s construction was correct costs were around £24,000. On the fixed costs regime the total would be some £10,000.

THE CIRCUIT JUDGE’S DECISION: FIXED COSTS CONTINUE TO APPLY

The claimant’s argument succeeded before the District Judge However the defendant was successful on appeal The Circuit Judge held that, as a matter of principle, the courts should construe the order to give effect to the principle of fixed costs

THE JUDGMENT

8. I have been given a helpful bundle of authorities, none of which directly deal in fact with the situation with which I am faced here. But in the case of Sharp v Leeds City Council [2017] EWCA Civ 33, Lord Justice Briggs said that, and he was dealing, as I have said, with a slightly different situation, he said and the head note reflects, that the plain object of intent of the fixed costs regime for claims started but not continuing under the protocol was that from the moment of entry into the portal pursuant to the protocol recovery of the costs pursuing or defending that claim and all subsequent stages was intended to be limited to the fixed rates of recoverable costs subject only to a very small category of clearly stated exceptions. That expression of principle seems to me to be an important one. The actual decision of the case is concerned with the applicability of the fixed costs regime to applications for pre-action disclosure, but the principle set out is of some very considerable importance because the claimant says that this was a case in which the agreement should be construed on the basis that the parties agreed that the fixed costs regime would not apply…

22. It does seem to me that a number of the cases which have come before the Court of Appeal are cases in which the claimant has tried to take bad points and to get round the provisions of the fixed costs. This is not the case here because the claim was properly started, the protocol was followed and the claim exited the protocol, if that is the right way of putting it, because there was going to be a trial. There are no grounds at all for criticising the claimant or its solicitors for their conduct of the litigation and it is wrong to say that that is the way in which the defendants should have put the case. 23. It seems to me that if one goes back to what was said in the Sharp case as an expression of principle rather than part of the judgment the courts should uphold the restriction on costs set out in part 45 of the CPR save in exceptional circumstances. What Mr Lyons on behalf of the claimant says is that by agreeing to an order that the costs be assessed the defendants were impliedly going outside the terms of part 45, or perhaps bringing in further provisions. In my judgment the provisions of 45.29D, which I started off this judgment by reading, are mandatory and it does not seem to me that you can contract out of them in those circumstances other than in the very limited provisions referred to Approved Judgment His Honour Judge Yelton Bratek v Clark-Drain by the Court of Appeal in the Sharp case, which the claimant does not assert applied in this case.

24. This case has been very well argued on both sides and I have looked at the various authorities and I am satisfied at the end of the day that the defendants are right and the learned district judge, who is rarely appealable, was not right. So I shall allow the appeal.

25. What I will do is I will allow the appeal, set aside the order of District Judge Matthews and order that the costs recoverable by the claimant are restricted to the fixed costs and disbursements