“In my judgment there were, in this case, factors which would entitle the Deputy District Judge to find that there are exceptional circumstances making it appropriate to effectively award costs higher than the fixed costs regime, and the Deputy District Judge took those matters properly into consideration. No guidance is given in the notes to the White Book in relation to the applicability of this test. However, I find that the Deputy District Judge looked at all relevant matters and, in reference to those matters which he referred to in his judgment, particularly considering the correspondence between the parties, it was appropriate for him to reach the conclusion that there were exceptional circumstances here, making it appropriate to consider a claim for a higher amount of costs. Those factors as stated were not only the value of the claim, but also the permanent disability and the Ogden calculation. All of those factors are in my judgment capable of being exceptional circumstances in the context of CPR45.12, i.e. within a fixed costs regime.”
Overturning a first appeal decision of His Honour Judge Wulwik in the High Court, Lord Justice Newey determined that acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to detailed assessment if not agreed” did not amount to contracting out of fixed costs, which continued to apply.
On this appeal from Costs Officer Martin in the Senior Courts Costs Office, the Defendant contended that the Claimant had no entitlement to payment of Counsel’s fee for an advice.
This was the latest in a series of unsuccessful attempts to escape fixed costs as governed by Section IIIA of CPR 45 by reason of exceptional circumstances under CPR 45.29J. The claimant’s solicitors argued that it had been the claimant’s intention from the outset to pursue the claim outside the Portal. They had initially sent the defendant a letter of claim and only later added the claim to the Portal at the defendant’s insistence in order to progress matters, saying that “the Defendant refused to consider the matter unless a Portal submission was made”.
The setting of the policy reasons reiterated in the Fixed Costs regimes cases cited earlier in this judgment, while allowing for “exceptional circumstances” to depart from that regime, require a more strict, not a “low bar”, approach.