Fixed costs & Applications for Pre-Action Disclosure in EL/PL claims

Sharp v Leeds City Council [2017] EWCAC Civ 33 Jackson LJ, Briggs LJ, Irwin LJ

In this case the Court of Appeal considered whether the regime for fixed costs provided by Section IIIA of Part 45 for claims which started, but no longer continue, under the EL/PL Protocol applies to the costs of an application for Pre-Action Disclosure in connection with such a claim. Catherine Moran, Costs Lawyer, PIC, reports.

There has previously been inconsistency between judges on the determination of pre-action disclosure applications of this type, with some Courts assuming the Fixed Costs Regime applies, treating the Pre Action Disclosure Application as an interim Application within the meaning of Part 45.29H; and other Courts treating the costs of Pre Action Disclosure Applications as if they were governed by CPR 46.1, and generally summarily assessing costs on the standard basis.

In this claim the Court had awarded the Claimants costs of her Application for Pre Action Disclosure as if governed by CPR 46.1 and summarily assessed them at £1250.00. On Appeal, the Court concluded that the Fixed Costs Regime applied to the Pre Action Disclosure Application, resulting in costs being reduced to £305.00.

The Court of Appeal held that: “The fixed costs regime plainly applies to the costs of a PAD application made by a claimant who is pursuing a claim for damages for personal injuries which began with the issue of a CNF in the Portal pursuant to the EL/PL Protocol but which, at the time of the PAD application, is no longer continuing under that Protocol.”

Our comments:

Although this Judgment is perhaps not the most desired outcome for Claimant Solicitors, it provides clarity as to the position to enable Practitioners to consider the cost/benefit of making Pre-Action Disclosure Applications in low value personal injury claims. Interestingly, the Judgment highlights that there remains scope to make an Application under CPR 45.29J, to claim for an amount exceeding fixed recoverable costs, if exceptional circumstances can be shown. It was further noted that a Defendant’s deliberate disregard of Protocol disclosure obligations would not be regarded as unexceptional merely because it was frequently encountered. All is therefore not lost. However, it must be remembered that, pursuant to CPR 45.29K, unless costs are assessed at more than 20% of the amount of the fixed recoverable costs, the Court will in any event only allow the fixed recoverable costs.

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