The Court of Appeal has dealt a blow to claimant lawyers by coming down on the defendants’ side in a crucial costs dispute.
Lord Justice Briggs said the claimant in Sharp v Leeds City Council was entitled to only fixed costs for pre-action disclosure (PAD) in a case which had dropped out of the personal injury portal.
Briggs said the time may come when fixed costs were more generous, but for now the rules were prescribed by the regime and the court was not entitled to make a summary assessment.
‘To throw open PAD applications generally to the recovery of assessed costs would in my view be to risk giving rise to an undesirable form of satellite litigation in which there would be likely to be incentives for the incurring of disproportionate expense, which is precisely what the fixed costs regime, viewed as a whole, is designed to avoid,’ said Briggs.
The claim had been made against Leeds City Council after a pedestrian tripped over a pavement and fell, suffering a wrist injury.
After the claim was loaded onto the portal in July 2014, it was common ground the claim then dropped out of the protocol, with the claim notification form treated as a letter of claim. The council failed to give the pre-action disclosure pursuant to the personal injury protocol, with the result that the claimant made a PAD application to the county court in February 2015.
A district judge had awarded the claimant the costs of the PAD application, a figure of £1,250. But on appeal Judge Saffman said the fixed costs regime should apply and he reduced costs to £305.
Claimant lawyers argued in the Court of Appeal that the regime for fixed recoverable costs was ‘incompatible’ with the general rule for the costs of PAD applications. To confine claimants to fixed costs, they said, would be an ‘inadequate sanction for widespread procedural misconduct by defendants’.
But Briggs said that to ‘throw open’ PAD applications to assessed costs could create an undesirable level of satellite litigation.
‘The fixed costs regime inevitably contains swings and roundabouts, and lawyers who assist claimants by participating in it are accustomed to taking the rough with the smooth, in pursuing legal business which is profitable overall.’
The judge said the solution was not to subject the fixed costs regime to an implied exemption but to create a more variable level of recoverable costs liability.
Briggs added: ‘The fixed costs regime needs to be kept under review, and defects in it remedied by adjustment of the fixed allowances where that can be shown to be justified.’