A PI claimant who had applied for re-allocation from the fast track to the multi-track – only for the defendant to settle before it reached that stage – will be allowed to recover assessed rather than fixed costs, a court has ruled.

The defendant in Adelekun v Lai Ho had applied to the court for fixed costs to apply to the personal injury claim, which was settled for £30,000 damages in April 2017.

Both parties had already signed a consent order stating that costs would be assessed. The difference was significant: fixed costs in the fast-track would have been worth around £12,000, whereas the claimant sought almost £43,000 in costs.

Sitting in the County Court at Central London, His Honour Judge Wulwik upheld an appeal against the decision of a deputy district judge to vary the consent order.

The judge stressed the defendant had agreed as part of the Tomlin order to pay the reasonable costs of the claimant ‘on the standard basis’. This would be the subject of detailed assessment if the parties could not agree.

‘That cannot be construed as an agreement to pay costs on the usual basis of fixed costs,’ he said. ‘By the time the order was signed…the defendant had agreed to the matter being reallocated to the multi-track.’

HHJ Wulwik said there was no basis for the deputy district judge to vary the consent order containing the parties’ agreement on costs. The DDJ had ruled in February 2018 that the fixed costs regime applied, but it was open to the claimant to argue on detailed assessment that exceptional circumstances justified extra costs.

The claimant’s lawyers argued the DDJ had no power to vary an order containing parties’ contractual agreement. The defendant said the wording of the order did not oust the fixed recoverable costs provided by Civil Procedure Rules.

Tom Jenkinson, a senior lawyer (FCILEx) for London firm Bolt Burdon Kemp, which represented the claimant, said the judgment provides a ‘comprehensive and detailed account of the law relating to fixed costs and will serve as excellent guidance to costs practitioners on the topic’.