The Court of Appeal held that the fixed costs regime plainly applies to the costs of a pre-action disclosure application made by a claimant pursuing a claim for damages for personal injuries.
This case resolves a short but important point of interpretation of the CPR, as to whether the fixed recoverable costs regime under Section IIIA of Part 45 applies to the costs of an application for pre-action disclosure once it has exited the portal process.
The claimant slipped and fell, sustaining injury, believing that it had been caused by a defective paving slab on the defendant’s footpath. The claimant notified the claim on the low value EL/PL portal. The claim exited the portal because liability was not admitted.
As the defendant failed to give disclosure under the personal injury protocol the claimant issued an application for pre-action disclosure (PAD). At first instance, the court treated the fixed costs regime as inapplicable to PAD applications but, on appeal, HHJ Saffman came to the opposite conclusion.
The claimant argued that:
Claimant’s counsel made what were seen as inevitable concessions that:
Lord Justice Briggs found 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.”
The plain object and intent of the fixed costs regime in relation to claims of this kind is that, from the moment of entry into the Portal pursuant to the EL/PL Protocol (and, for that matter, the RTA Protocol as well) recovery of the costs of pursuing or defending that claim at all subsequent stages is intended to be limited to the fixed rates of recoverable costs, subject only to a very small category of clearly stated exceptions.
The fixed costs regime plainly applies to cases which no longer continue under the EL/PL Protocol but which never reach the stage when court proceedings are issued.
PAD applications fall within the description of interim applications in Part 45.29H, as being "an interim application”. To throw open PAD applications generally to the recovery of assessed costs would, in my view, be to risk giving rise to an undesirable form of satellite litigation in which there would likely be incentives for the incurring of disproportionate expense - which is precisely what the fixed costs regime, viewed as a whole, is designed to avoid.
Finally, common sense has prevailed to end the gravy train of applications that are issued and block listed before the courts on a daily basis.
We expect the frequency of these applications will drop significantly now the Court of Appeal has confirmed that the fixed recoverable costs regime applies.
However, the real issue is the failure to comply with protocol disclosure obligations. Defendants should heed the warning of LJ Briggs that:
“...the very limited recovery of expenditure on a PAD application under the fixed costs regime means that such applications are not as effective as a means of sanctioning breach of protocol disclosure obligations as they should be.
“If that is made good by appropriate evidence, then it seems to me that some consideration by way of review to the establishment of a more generous, but still fixed, recovery of costs of such applications would be justified.”
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