This is a claim arising out of a Road Traffic Accident, which occurred on 28 August 2018. The claim began life in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents before exiting the portal.
A claim form was issued on 22 May 2019 and proceedings were deemed served on 28 May 2019. The matter was subsequently allocated to the fast track. As such, the claimant was entitled to costs to be calculated with reference to Part IIIA of CPR r.45.
There was a c. 2 week delay in the claimant receiving payment of costs. Without any warning the claimant issued a 'without notice' application seeking an order for fixed costs of the substantive claim and also sought an award for the claimant's costs of the application, to be summarily assessed outside the fixed costs regime. The court granted the application and summarily assessed the claimant's costs at c. £500.
The defendant's application to set aside
Upon receipt of the order DWF Costs applied to set aside the summarily assessed costs arguing that;
- The application was improperly advanced as an application without notice and conducted without a hearing in breach of CPR r.23.4, r.23.7 and paragraphs 3 and 4 CPR Practice Direction 23A.
- The claimant had no entitlement to costs of their application by virtue of CPR r.45 and there being nothing in this case to take it outside the scope of the Fixed Costs Regime. The wording of CPR r.45.29B is clear that 'the only costs allowed' are the fixed costs in CPR r.45.29C (plus disbursements), with no provision to award 'costs at large'. Further reliance was placed on the recent Court of Appeal authorities of Hislop v Perde  EWCA Civ 1726 and Sharp v Leeds City Council  EWCA Civ 33.
Emphasis was given to paragraph 50 of Hislop:
'Secondly I consider that my interpretation preserves the autonomy of Part 45. If a case begins under the fixed costs regime then it should only be in exceptional circumstances that the parties are able to escape it. 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 give case, the 'swings and roundabouts' identified by Briggs LJ in Sharp will still apply.'
Scope of fixed costs
The court found the fixed costs regime was in application despite the claimant arguing that section 51 of the Senior Courts Act 1981 allowed recovery of costs and the court had a wide discretion in CPR r 44.4. The claimant's argument was dismissed as the application was caught by fixed recoverable costs.
Exceptional Circumstances (CPR r.45.29J)
The delay of 2 weeks did not construe exceptional circumstances and the claimant had made little attempt to chase the payment.
Without Notice Application
The court found that the claimant's solicitors could not properly explain why they had made the application without notice i.e. without requesting a hearing. Further the court found it must have been clear that the payment of the costs of the application would be contentious and it was likely to be contested by the defendant.
The claimant was ordered to pay the defendant's costs of the application assessed in the sum of c. £1,100. Ironically the claimant argued that the defendant should not be entitled to costs because the court had found fixed recoverable costs apply. The court followed the decision in Parsa v DS Smith Plc  WLUK 719 and assessed the defendant's costs at £1,100.
What does this mean for Insurers?
This is a welcome development that will bring to an end the practice of some claimant representatives obtaining without notice orders prematurely for payment of costs that were not contested. Insurers that receive such orders need to act promptly (within 7 days of service) to apply to set them aside.
The costs of a claimant's application can then be opposed and if successful the court can award the defendant costs on a conventional basis, but capped at the claimants fixed costs (CPR r.45.29F).
The costs proceedings and appeal were conducted by Simon Fisher, Senior Manager/Costs Lawyer who can be contacted at email@example.com
The defendant's acting counsel in the appeal was Andrew Cousins of DWF Advocacy and can be contacted at firstname.lastname@example.org