On this appeal from Costs Officer Martin in the Senior Courts Costs Office, the Defendant contended that the Claimant had no entitlement to payment of Counsel’s fee for an advice.
This was the latest in a series of unsuccessful attempts to escape fixed costs as governed by Section IIIA of CPR 45 by reason of exceptional circumstances under CPR 45.29J. The claimant’s solicitors argued that it had been the claimant’s intention from the outset to pursue the claim outside the Portal. They had initially sent the defendant a letter of claim and only later added the claim to the Portal at the defendant’s insistence in order to progress matters, saying that “the Defendant refused to consider the matter unless a Portal submission was made”.
The setting of the policy reasons reiterated in the Fixed Costs regimes cases cited earlier in this judgment, while allowing for “exceptional circumstances” to depart from that regime, require a more strict, not a “low bar”, approach.
The Court of Appeal has upheld the decisions of District Judge Bellamy (first instance) and Soole J (on appeal) that a 100% success fee in a low value personal injury claim which was fixed without any reference to the actual risk involved amounted to a cost of “an unusual nature or amount” under CPR 46.9(3)(c).
In cases subject to the fixed costs regime in Section IIIA of Part 45, where a defendant accepts a claimant’s Part 36 offer many months after it was made, and the case does not then go on to trial, the case remains within the fixed costs regime and (save in exceptional circumstances) neither indemnity nor standard basis costs apply.