COURT COULD NOT GO OUTSIDE FIXED COSTS REGIME: HOWEVER AN ORDER SEEKING INDEMNITY COSTS IS NOT AN “INTERIM” APPLICATION
I am grateful to Matthew Hoe from Taylor Rose for sending me a copy of the judgment of Mrs Justice Carr in Parsa -v- D.S. Smith PLC (25th March 2019) Parsa v D.S. Smith PLC – Approved Judgment – 25.03.2019 V1. It relates to the question of whether the court should have made an order other than fixed costs. It also decided that the claimant’s application seeking indemnity costs was not an interlocutory application and not subject to the fixed costs regime. This meant that the claimant recovered £4,155 plus VAT and disbursements, however the claimant was also ordered to pay the defendant’s costs of the application assessed at £1,7120.00.
The claimant was injured whilst he was travelling in the back of a lorry. He was an illegal immigrant concealed in the lorry when it was struck from behind by the defendant’s vehicle. The defendant put forward a defence of ex turpa cause, volenti and alleged contributory negligence.
THE CLAIMANT’S PART 36 OFFER
The claimant made an offer to settle in November 2016. It was accepted by the defendant four months after the expiry of the 21 days period for acceptance and only a week before trial.
THE CLAIMANT’S APPLICATION FOR COSTS
The claimant made an application for the costs of the action to be on the indemnity basis, because of the defendant’s late acceptance, the defendant’s conduct and “exceptional circumstances” under CPR 45.29J.
THE DECISION OF THE DISTRICT JUDGE
The District Judge refused the claimant’s application. He held that he had no jurisdiction to award costs on an indemnity basis.
“There was no provision for moving from fixed costs to assessed standard basis costs a result of late acceptance of a Part 36 offer in a fixed costs case. Finally, the Respondents’ costs of the Appellant’s application were payable under C.P.R. 45.29F.”
THE COSTS OF THE APPLICATION
The District Judge held that the claimant pay the defendant’s costs of the costs application which were not fixed costs and were assessed at £1,712.20.
THE CLAIMANT’S APPEAL
The appeal had been stayed for a period, awaiting the judgment in Hislop v. Perde  E.W.C.A. (Civ) 176,  1 W.L.R. 201 (“Hislop”). The judge found that the District Judge had not erred.
“It seems to me that, insofar as the law has moved on and been clarified by Hislop, there is no basis for interfering with what was essentially a finding of fact and an exercise of discretion by the Judge. He had before him the material to make the necessary deliberations in accordance with the wider and more contextually open-ended test identified by Coulson LJ in Hislop. Most centrally, he held that the Respondents’ delay in accepting the Appellant’s Part 36 offer was a very long way indeed from being an exceptional circumstance. That is an answer to ground 2 without more. Further, he was entitled to take into account costs expended as a result of any unusual conduct and entitled to take that into account as a material factor. Mr. Mallalieu points to the fact that, perhaps ironically, it was the delay on the Respondents’ part in accepting the Appellant’s final Part 36 offer that tipped the Claimant’s costs recoverability into the final and highest costs bracket.”
27. Finally, the Judge made the pertinent finding that this was not a case where there had been any deliberate or tactical game-playing. It, therefore, seems to me that, by reference to the C.P.R. 45.29J as explained in Hislop as set out above, the conclusion reached by the Judge was one that he was entitled to reach and with which an appellate court should not interfere.”
WAS THE CLAIMANT’S APPLICATION AN INTERIM APPLICATION?
The claimant’s appeal on being ordered to pay the assessed costs of the application was also unsuccessful. The judge upheld the finding that this was not an “interlocutory” application.