![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ho v Adelekun [2019] EWCA Civ 1988 (19 November 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1988.html Cite as: [2020] RTR 6, [2019] EWCA Civ 1988, [2019] Costs LR 1963 |
[New search] [View without highlighting] [Printable PDF version] [Help]
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Wulwik
Claim number: A06YQ205
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE NEWEY
and
LORD JUSTICE MALES
____________________
MRS SIU LAI HO |
Appellant (Defendant) |
|
- and - |
||
MISS SEYI ADELEKUN |
Respondent(Claimant) |
____________________
Mr Roger Mallalieu (instructed by Bolt Burdon) for the Respondent
Hearing date: 31 October 2019
____________________
Crown Copyright ©
Lord Justice Newey:
The facts
"We are instructed by the Defendant to offer £30,000.00 gross in full and final satisfaction of this claim.
This offer is made in accordance with Part 36 of the Civil Procedure Rules. The terms of the offer are as follows:
1. Our client offers £30,000.00 by way of a gross lump sum in full and final settlement of your client's claim. This offer is made in relation to the whole of your client's claim.
2. The sum is gross of benefits repayable to the CRU….
3. If the offer is accepted within 21 days, our client will pay your client's legal costs in accordance with Part 36 Rule 13 of the Civil Procedure Rules such costs to be subject to detailed assessment if not agreed.
If your client accepts the offer after the 21 day period then either we will need to agree the costs liability or the court will have to make an order as to costs."
"As discussed, I am pleased to confirm that the Claimant will accept your offer of settlement in the sum of £30,000. I have attached a consent order setting out the terms of settlement.
The court have requested that we submit a consent order so that the hearing on Monday may be vacated. I should be grateful if you could sign the attached consent order and return it to me so that I may file it at court."
The context
The fixed costs regime
"(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the disbursements referred to in paragraph (1) are—
(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;
(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;
(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;
(d) court fees;
(e) any expert's fee for attending the trial where the court has given permission for the expert to attend;
(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;
(g) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and
(h) any other disbursement reasonably incurred due to a particular feature of the dispute.
…
(3) In a claim started under the RTA Protocol only, the disbursements referred to in paragraph (1) are also the cost of—
(a) an engineer's report; and
(b) a search of the records of the—
(i) Driver Vehicle Licensing Authority; and
(ii) Motor Insurance Database."
"(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.
(2) If the court considers such a claim to be appropriate, it may—
(a) summarily assess the costs; or
(b) make an order for the costs to be subject to detailed assessment.
(3) If the court does not consider the claim to be appropriate, it will make an order—
(a) if the claim is made by the claimant, for the fixed recoverable costs; or
(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,
and any permitted disbursements only."
"to impose a somewhat rough and ready system in a limited class of cases because the commercial interests behind the parties who bear the burden of large numbers of such cases considered that, taken overall, it was fair and saved both time and money".
As Briggs LJ observed in Sharp v Leeds City Council [2017] EWCA Civ 33, [2017] 4 WLR 98 at paragraph 31, "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". In a similar vein, Coulson LJ said this about the fixed costs regime in Hislop v Perde at paragraph 50:
"The whole point of the regime is to ensure that both sides begin and end the proceedings with the expectation that fixed costs is all that will be recoverable. The regime provides certainty. It also ensures that, in low value claims, the costs which are incurred are proportionate. In addition, whatever the perceived injustice in any given case, the 'swings and roundabouts' identified by Briggs LJ in Sharp's case … will still apply."
Part 36
"(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule 36.13 or 36.20 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim."
"(1) Subject to paragraphs (2) and (4) and to rule 36.20, where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror.
(Rule 36.20 makes provision for the costs consequences of accepting a Part 36 offer in certain personal injury claims where the claim no longer proceeds under the RTA or EL/PL Protocol.)
…
(3) Except where the recoverable costs are fixed by these Rules, costs under paragraphs (1) and (2) are to be assessed on the standard basis if the amount of costs is not agreed.
(Rule 44.3(2) explains the standard basis for the assessment of costs.)
…
(Part 45 provides for fixed costs in certain classes of case.)
… "
"(1) This rule applies where—
(a) a claim no longer continues under the RTA or EL/PL Protocol pursuant to rule 45.29A(1); or
(b) the claim is one to which the Pre-Action Protocol for Resolution of Package Travel Claims applies.
(2) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which notice of acceptance was served on the offeror.
…
(13) The parties are entitled to disbursements allowed in accordance with rule 45.29I incurred in any period for which costs are payable to them."
"If the offer is accepted within _____ days of service of this notice, the defendant will be liable for the claimant's costs in accordance with rule 36.13."
A note against these words reads:
"Specify a period which, subject to rule 36.5(2), must be at least 21 days".
Assessment
"(1) Where the court orders a party to pay costs to another party (other than fixed costs) it may either—
(a) make a summary assessment of the costs; or
(b) order detailed assessment of the costs by a costs officer,
unless any rule, practice direction or other enactment provides otherwise.
…
(2) A party may recover the fixed costs specified in Part 45 in accordance with that Part."
CPR Part 47 contains, as its heading indicates, "Procedure for detailed assessment of costs and default provisions".
"Although I accept that that regime does involve an assessment of some kind (particularly in relation to disbursements and cases where the court is satisfied that exceptional circumstances exist), I do not think that one can properly regard it as representing an assessment on the standard basis in those cases to which it applies."
In Broadhurst v Tan [2016] EWCA Civ 94, [2016] 1 WLR 1928, Lord Dyson MR said at paragraph 30 that "fixed costs and assessed costs are conceptually different". He explained:
"Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done. The court examines whether the costs were incurred, and then asks whether they were incurred reasonably and (on the standard basis) proportionately."
Re-allocation
"Where—
(a) claim is allocated to a track; and
(b) the court subsequently re-allocates that claim to a different track,
then unless the court orders otherwise, any special rules about costs applying—
(i) to the first track, will apply to the claim up to the date of re-allocation; and
(ii) to the second track, will apply from the date of re-allocation."
"I therefore accept that this court has the power to re-allocate this claim from the small claims track to the multi-track. It is also clear that, were we to make that order, any special rules applying to costs of claims proceeding in the small claims track would continue to apply to the claim up to the date of re-allocation, unless we were to order otherwise. It is, I think, implicit in CPR r.46.13 that the court has the power to order otherwise and so, effectively, backdate the re-allocation for costs purposes, though any court contemplating making such an order would need to be satisfied that there are good reasons for doing so."
On the facts, the Court declined to re-allocate.
The scope of the dispute
i) Did the appellant's solicitors, by their letter of 19 April 2017, offer to pay "conventional" rather than fixed costs? [Issue 1]
ii) If not, should the claim be re-allocated to the multi-track with retrospective disapplication of the fixed costs regime? [Issue 2]
Issue 1: The offer letter
Issue 2: Re-allocation
"The claimant seeks to rely on the provisions of CPR 36.14(5)(b) which enables the Court to deal with any question of costs notwithstanding any stay under CPR Part 36. However, it appears to me that the claimant is impermissibly trying to piggy back the provisions of CPR 36.14(5)(b) with an application to reallocate the claim to the multi-track. I do not consider that rule 36.14(5)(b) enables the claimant to do this. Further, the terms of the consent order signed by the parties, and embodied in the order dated 24 April 2017, provided in paragraph 2 that the claimant's application listed for 24 April 2017 be vacated. It would run contrary to the parties' consent order if that application could be resuscitated subsequently."
Conclusion
Lord Justice Males:
The Chancellor of the High Court: