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.
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”.
This was a costs decision following determination of 23 common issues between the parties in group litigation between several hundred sub-postmasters and The Post Office. It dealt with a number of issues, including:
Whether the costs of the Common Issues should be reserved;
Who should pay the costs of the Common Issues and in what proportion;
Whether the costs be assessed on the standard or on the indemnity basis;
An application for an interim payment on account; and
Timing of the detailed assessment of the costs.
Following his more widely reported decision on CPR 3.18(b) HHJ Dight declined to interfere with the Master’s ruling on proportionality where he reduced the claimant’s assessed costs from £52,000 to £40,000. The paying party appealed on grounds that the Master did not go far enough. She was unsuccessful.
On appeal against decisions made in the course of a detailed assessment in the Senior Courts Costs Office Mrs Justice Yip found (amongst other things) that the Deputy Master had been wrong to go behind the strict wording of the order for costs in order to give effect to what she believed the maker of the order had intended, rather than to what it actually said.
A Costs Officer conducting a detailed assessment on a standard basis was not precluded from considering whether the claimants’ costs should be limited to those recoverable under stages 1 and 2 of the Pre-Action RTA Protocol where there was a consent order in which the defendant agreed to pay the claimants reasonable costs.