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 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 The order superseded the figures set out in CPR 45.29A. The defendant argued that the order did not superseded CPR 45.29A.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