Portals, Pre-Action Disclosure and Fixed Costs

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Portals, Pre-Action Disclosure and Fixed Costs

Published 20 febrero 2017

The vertical and horizontal extension of the Personal Injury Low Value Pre-Action Protocols in 2013 not only increased their scope to claims valued at up to £25,000 and into Employers Liability and Public Liability claims, but also introduced fixed costs for claims which commence within and fall from the protocols.

The fixed costs provisions include a fixed fee for interim applications, but do not spell out the types of interim application to which this applies or, by exception, those to which it does not apply.  Historically, some firms of solicitors have been very quick to make applications for Pre-Action Disclosure in the event of a breach of the disclosure provisions of the Pre-Action Protocols, which has proven to be a lucrative activity for them, and the question has remained whether these applications should be subject to the fixed costs provisions (which only allow £125 plus VAT and the Court Fee) or continue to receive standard costs. 

The Court of Appeal was required to consider this question in Sharp v Leeds City Council on which its judgment was handed down on 1 February 2017.  In that case, the District Judge awarded standard costs to the Claimant of £1,250  and, on appeal, the Circuit Judge reduced the costs to £305 i.e. the fixed costs.

Lord Justice Briggs, with whom Lord Justices Jackson and Irwin agreed, analysed the nature of applications for Pre-Action Disclosure and confirmed that, whilst by their very nature pre-dating the issuing of proceedings, the applications form part of the claim commenced within the Portal and are interim applications.  Whilst there may be an argument that they should fall outside the fixed costs provisions due to 'exceptional circumstances', the volume of applications and frequency with which they are made should make it difficult for them to escape fixed costs and satellite litigation over the costs of the application would be undesirable.

Over recent years, the level of costs awarded in applications for Pre-Action Disclosure has varied widely depending on the judge involved and whether or not fixed costs apply.  This judgment should bring an end to this uncertainty and the confirmation that fixed costs apply should cause Claimants' solicitors to take stock and consider more carefully whether an application should be made.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

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