Fixed Costs Case Law

In light of the recent consultation on the extension of fixed costs to higher value claims it is important to continue to note the potential escape routes from fixed costs.

Once a claim is submitted through the portal there are very few avenues to take to avoid fixed costs applying. The usual denials of liability, delay, or complexity, whilst acting to remove the claim from the portal, still result in the Fixed Recoverable Costs regime applying up until the claim is allocated to the Multi-Track.

However, this is not always an option. Due to offers being made or for some other reason claims may be settled prior to allocation or even prior to the issuing of proceedings. In these circumstances, the only avenue to escape the Fixed Recoverable Costs Regime applying is to seek to plead ‘exceptional circumstances’ under CPR 45.29J.

Exceptional circumstances are, by their very nature, exceptional and therefore it is a high bar to overcome. However, two recent cases: Lloyd 2 Sisters Poultry Ltd (Costs) [2019] EW Misc 18 and Crompton v Meadowcroft (Costs) [2021] EW Misc 20, have considered this issue and in both cases exceptional circumstances were found and fixed costs were not applied. In both of these cases the Court looked at whether the case fell within the normal type of claim that would be captured by the Fixed Recoverable Costs regime. Both judgments looked at the wider circumstances of the claim and noted the issues of potential permanent disability, calculations with regard to the Ogden tables, and the volume of work required in respect of witness and expert evidence.

If you have any comments or queries regarding this post, please contact Kris Kilsby at [email protected]

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