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”.
A Master (sitting as deputy costs judge) was wrong to set a “low bar” when determining whether a case had met the “exceptional circumstances” threshold in CPR 45.29J for the purpose of escaping fixed costs. The matter had started in the portal but later exited when it was discovered that the impact of the claimant’s injuries was greater than had been initially thought. It ultimately settled for £42,000. The Master determined that the case was “on balance outside the general run of such cases” that entered the portal and as such cleared the “low bar” of exceptionality. Mr Justice Stewart overturned this decision.