“If a claimant wishes to benefit from the provisions of paragraph 7.13 to 7.22 (and by doing so be paid an interim payment), he or she must obtain a stay under paragraph 7.12. This, to my mind, is the natural reading of the Protocol. It is also entirely understandable why the drafters of the Protocol would wish to restrict a claimant’s ability to seek interim payments under paragraphs 7.13 and 7.18 to certain defined circumstances (namely, those that are set out in paragraph 7.12)…. it must follow that the Claimant wrongly exited the Portal.”
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Where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and the notified claim then settles on behalf his Estate pre-issue, are the costs and disbursements payable by the defendant to be calculated by reference to Section IIIA (or III) of CPR 45? Or are they to be calculated by reference to the generally more favourable Section II of CPR 45?
The Court of Appeal determined the following costs issues following a successful second appeal:
(1) Do the rules governing fixed costs in CPR r.45.17 to 19 apply to the costs of the appeal?
(2) If not, does CPR r.52.19 apply?
(3) If CPR r.52.19 does apply, what order for costs should we make?
(4) Does the Qualified One-Way Costs Shifting regime in CPR Part 44 apply to the costs of the appeal so as to limit the extent to which any order may be enforced against the respondent?
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.
Jackson LJ has delivered his Keynote Address on the Review of Fixed Recoverable Costs.