Does the fixed costs regime within Section IIIA of Part 45 CPR for ex-portal personal injury claims apply to applications for pre-action disclosure (PAD)? On 1 February 2017 the Court of Appeal in Caren Sharp v Leeds City Council unanimously held it did.
Some judges had been applying fixed costs whilst others opted for summary assessment. This decision is welcomed for resolving that uncertainty.
Upon an analysis of the CPR, the Court of Appeal’s decision was always the logical conclusion. Rules 45.29A and 45.29D provide that where a claim no longer continues under the RTA or EL/PL Protocols then, subject to Rules 45.29F, 45.29H and 45.29J, only fixed costs and disbursements are allowed. Under Rule 45.29H costs awarded on an interim application are fixed by reference to half of the Type A and/or Type B costs in Tables 6 or 6A.
Is a PAD application an interim application within the meaning of Rule 45.29H? It is difficult to see how it can’t be. Rule 25.1 lists a PAD application as an interim remedy. An application for such an interim remedy must by definition be an interim application, which was held to be the case several years ago in Connaughton v Imperial College Healthcare NHS Trust  EWHC 90173.
The Court of Appeal rejected the argument that a PAD application was not part of a ‘case’ to which Section IIIA of Part 45 applied. Briggs LJ said that the ‘case’ was the claim for damages for personal injury, the application was made in pursuit of that case, and it was ‘interim’ because it followed the CNF but preceded settlement or judgment.
It’s often said by that fixed costs do not cover the costs incurred by non-compliance with disclosure obligations, nor do they provide much of an incentive for compliance. The Court of Appeal’s answer to that was Rule 45.29J and the ability to assess costs in “exceptional circumstances”, although it was recognised that because non-compliance was so common it may be difficult to show it is exceptional.
The Court’s alternative suggestion was for a review and the establishment of a more generous fixed costs regime for PAD applications (there is unlikely to be uncertainty among practitioners about whether that will happen).
James Tunley / 17th Feb 2017
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