Fixed costs on claims commenced within the Portal, even if settlement order fails to record it

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Fixed costs on claims commenced within the Portal, even if settlement order fails to record it

Published 27 junio 2018

Claims commenced within the Low Value Protocols, which are not allocated to the multi-track, should be the subject of fixed calculable costs, as set out in r.45.29. But what happens when a settlement Order erroneously refers to the costs as being assessed on the standard basis? The recent judgment of His Honour Judge Yelton in Bratek v Clark-Drain Limited should reassure defendants and their insurers that an Order in which the costs payable are referred to as being assessed on the standard basis should not allow the claimant to escape the fixed costs regime.

Arkadiusz Bratek pursued a claim for personal injuries, which he commenced through the Pre-action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims. Liability was not admitted, and the claim exited the portal process, settling shortly before trial. The settlement was recorded in an Order, which provided that the defendant was to pay the claimant's costs on a standard basis, to be assessed if not agreed. The claimant sought to recover standard costs in the region of £24,000 rather than fixed calculable costs which would have been in the region of £10,000.

Noting recent cases which decided questions of costs in relation to the Low Value Protocol, including Broadhurst v Tan and Williams v Secretary of State for Business, Energy and Industrial Strategy, His Honour Judge Yelton decided that parties cannot contract out of the provisions of r.45.29 limiting the claimant's costs to fixed calculable costs in cases which commence within the Low Value Protocol.

This judgment will of benefit to insurers and their insureds, as it closes a potential loophole which would allow claimants to escape the fixed recoverable costs provisions.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

Peter Allchorne

Peter Allchorne

Bristol

+44 (0) 117 918 2275

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