In the judgment today in West v Burton [2021] EWCA Civ 1005 the Court of Appeal held that a case pursued by the estate of a deceased person was not subject to the fixed costs provisions of Section III of the Civil Procedure Rules, but instead fell under Section II.  The sums involved were relatively small, the principles involved are of some significance.




The claimant was involved in a road traffic accident and suffered injury. He instructed solicitors who intimated a claim on the Portal. The claim exited the portal, no admission was made and the claim exited the portal.

The claimant then died (for reasons wholly unconnected with the accident).

The claimant’s solicitors informed the defendant of the claimant’s death and obtained a medical report. A  Grant of Probate was obtained and sent to the insurer.


The defendant made a Part 36 offer which was accepted.



The Court of Appeal stated the issue. There were two different costs regimes.  The court had to determine which one applied.


Where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and the notified claim then, without legal proceedings being issued, proceeds to settlement between the deceased’s personal representative and the defendant’s insurers, are the costs and disbursements payable by the defendant to be calculated by reference to Section IIIA (or, as the case may be, Section III) of Part 45 of the Civil Procedure Rules? Or are they to be calculated by reference to Section II of Part 45 of the Civil Procedure Rules?”



The District Judge and Circuit Judge decided that the claim had settled with the Executor as claimant. Therefore Section II costs applied.


The Court of Appeal upheld the decision of the judges below.   Sir Nigel Davis gave one judgment which was agreed by Dingemans LJ and Singh LJ.

    1. I have not found this case altogether easy. But, on reflection, I consider that the Judge was correct.
    1. If a “claim” and “claimant” for the purposes of the fixed costs regime are to be equated with the meaning which they conventionally bear in the context of legal proceedings, then, given the provisions of s.1(1) of the 1934 Act and CPR r 19.8, the force of Mr Mallalieu’s arguments is clear-cut. But I do not consider that is how this scheme works. As the Judge noted, the word “claim” (and thence “claimant)” is not here being used in the Protocol in a formal sense. Rather it is being used as descriptive of a demand for damages prior to the start of any legal proceedings. Indeed, it is noticeable that, under the Protocol, a defendant is defined so as (primarily) to connote the insurer. The definition of “claim” in paragraph 1(6) of the Protocol is thus not to be equated with the definition of “claim” contained in CPR r.2.3. Read as a whole, the Rules and the Protocol are, in my opinion, drafted on the footing that the claimant throughout remains the person who issued the CNF. By way of example, that is illustrated by the entitlement to an increase in fixed recoverable costs by reference to a specified area “where the claimant lives and works …. and instructs a solicitor who practises in that area”: (see CPR r. 45 (11)(2); 45.18(5); 45.29C(2)). That is also, in my opinion, the general tenor of the Protocol. For example, paragraphs 7.6 and 7.7 of the Protocol refer to photographs of “the claimant’s” injuries and to situations where “the claimant” is not wearing a seat-belt. Likewise, paragraph 7.8 refers to situations where “the claimant” is receiving continuing medical treatment. All this connotes that, for the purposes of the Protocol, the claimant throughout is regarded as the person who was involved in the road traffic accident. Furthermore, r.45.29A and r.45.29B are in terms confined to claims started under the Protocol. I consider, accepting the submissions of Mr Williams, that in this case the claim that was settled was that of Mr West. But Mr West was not himself the person who started the claim, within the meaning of the Protocol. Indeed, as executor he never could have started such a claim, given the provisions of paragraph 4.5(3) of the Protocol. Consequently, this was not a claim, for the purposes of assessing costs, within the ambit of CPR r.45.29A or r. 45.29B. Accordingly, costs fall to be assessed by reference to Section II.
    1. It further follows that I agree with the Judge that the outcome would have been the same even had the claim not exited the Portal. The provisions of Section III would not have come into play; and this would still have remained a Section II case.
    1. It seems to me that such an interpretation is also supported by purposive considerations. I do not say, any more than did Mr Williams, that the interpretation argued for by Mr Mallalieu gives rise to a result devoid of all sense: and Mr Mallalieu was also entitled to rely on the “swings and roundabouts” elements inherent in the overall scheme, as explained by the Court of Appeal in Hislop v Perde (cited above). But his suggested safeguards against potentially unfair results did not, with respect, strike me as being very cogent in this context. For example, the strict approach taken by the Court of Appeal in Cham v Aldred (cited above) suggests that any claim to recover as a disbursement the costs of obtaining a Grant (or the appointment of a trustee in bankruptcy etc.) would not prosper. Nor is it at all easy to see how death (or bankruptcy etc.) could be viewed as an “exceptional circumstance” for the purposes of the Rules. This can matter. For example, the only reason in some cases (the present case may or may not be one, it is not altogether, on the evidence, clear) for obtaining a Grant of Representation may be to pursue a personal injury claim. If that is so, then the costs of doing so potentially may, in the event of a successful outcome, be requested as part of the costs of and incidental to the claim. But, in a situation such as the present, such a request is, on the appellant’s arguments, prospectively altogether excluded as being recoverable or otherwise compensated by a higher rate of recovery of fixed costs and disbursements. It is difficult to think that such an outcome was contemplated by the overall scheme.
    1. I should add that there was brief discussion in argument as to what the position might be if a cause of action under the Fatal Accidents legislation arose. That is, for the purposes of Protocol claims, likely only rarely, if at all, to arise. The considerations arising on such a scenario are very different from the present case: not least because such a cause of action could not, ex hypothesi, accrue to a potential claimant while alive. In any event, there is the potential for such a case to be assigned to the multitrack or to be subject to a notice under paragraph 7.76. I therefore do not consider that such a scenario bears on the proper outcome for this appeal.
    1. I also add that the conclusion which I reach does not, in my opinion, result, as was suggested, in two potential applications for costs in two separate claims. The liability of Mr Morriss for costs incurred prior to his death will be a liability of his estate. As such, they are capable of being sought by the executor as part of the overall recoverable costs on the settlement or the determination of the executor’s claim.
  1. In all the circumstances, I would, for my part, uphold the decision of the Judge and would dismiss this appeal. It will be a matter for the Rules Committee to consider whether it would be advantageous to set out the desired outcome for situations such as these in express terms.