Fixed Costs and Part 36: Unpacking Bosley -v- Wheatcroft

Costs cases involving Part 36 and their interplay with Fixed Costs seem to be a semi-regular occurrence. One such recent case is that of Bosley -v- Wheatcroft, heard in the County Court at Nottingham on 8th November 2023 whereby the receiving party sought to argue exceptional circumstances.

The case originated following the Claimant sustaining injuries following a road traffic collision in 2018. A pre-allocation Part 36 offer of £135,000 was accepted within the relevant period (following an agreed extension to the same), and arguments thereafter arose as to whether costs exceeding fixed recoverable costs were justified under CPR 45.29J.

The claimant argued that CPR 45.29J could apply alongside CPR 36.20, referencing obiter comments in Hislop -v- Perde. However, the Court distinguished the current case from that of Hislop and, although they confirmed that they were not bound by the decision, they followed the decision in McGreevy -v- Kiramba, emphasising the clear wording of CPR 36.20 and its omission of references to CPR 45.29J. The court concluded that the Claimant could not rely on CPR 45.29J.

The Claimant also asserted exceptional circumstances based on 6 factors; case allocation (a Notice of Proposed Allocation was received by the parties), permanent disability, use of Ogden Tables, multiple expert witnesses, case complexity, and settlement value. The court, applying the 'high bar' test set in Hislop -v- Perde, found that none of these factors, individually or collectively, met the threshold of exceptionality.

As a result, the Court dismissed the Claimant's application, stating that even if CPR 45.29J were applicable, the case did not meet the 'exceptional circumstances' test.

The case again demonstrates the difficulty practitioners face when trying to seek costs beyond fixed costs. Whilst each case should be considered on its individual merits, it is difficult to foresee almost any case (unless it hits the delay criteria in Hislop) hitting the exceptional circumstances bar if the current case failed to do so!

The full case can be found here.

For further information, please contact Karl Robson here.

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