A regional costs judge has ruled in favour of claimants in the latest hearing to consider the issue of fixed costs for interim applications.
In Skowron v Rollers Roller Disco Ltd (unreported), heard in Truro County Court in June, DJ Middleton accepted arguments made by claimant firm Russell Worth.
The issue at stake was the level of fixed costs to be awarded to the claimant following a court order for pre-action disclosure.
The defendants had sought to limit the claimants’ costs under CPR 45.29H(1) to £125 plus VAT, on the basis that the application had not had a hearing, and there had been no advocacy.
However, Russell Worth successfully argued that the CPR did not specify that advocacy needed to have taken place to receive the full fixed costs of £250 plus VAT for the interim application. Instead, the rule simply stated that the relevant party should receive ‘one half of the applicable type A and type B costs’. Type A costs are defined as the ‘legal representative’s costs’, while type B are ‘advocate’s costs’.
DJ Middleton said: ‘The argument therefore distils down to what is meant by the provisions of 45.29H(1).
‘What [the claimant] argues is that effectively it simply defines a mechanism to work out the cost, it does not mean that either type A or type B costs have to be incurred, instead it is simply a convenient way to calculate what the fixed fee is…
‘What is said by [the defendants] is quite the reverse – that plainly the fee is calculated on the assumption that there will be both solicitor and advocate costs, that it cannot have been the intention of the rule-makers to provide that there is a recoverable advocacy fee when there is no advocacy.’
The judge concluded: ‘CPR 45.29H(1) does not say that there has to be advocacy; it simply defines the fee in terms of calculation by it being half of type A and type B costs. That in itself, the fact that it refers to half, suggests to me that it is simply a mechanism to work out a fee rather than specifying that there must be both type A and type B costs incurred.
‘It is all very well to submit that the rule-makers did not intend something but the reality of course is that that is what the rule says… CPR 45.269H is simply a fee setting device and therefore the appropriate fee should be half of both type A and type B costs.’
The judge therefore ordered the defendants to pay fixed costs of £550, which included VAT of £50.
Ben Walters, legal executive at Russell Worth, said arguments over the amount of fixed costs for interim applications had been ‘steadily increasing’, and he hoped the decision would ‘stem the flow’ of such challenges by defendant representatives.