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@ Anonymous, 11:57

You make a good point about CPR 44.3(4). In Solomon v Cromwell, however, Moore-Bick LJ said:

"Although I accept that [the fixed costs] regime does involve an assessment of some kind (particularly in relation to disbursements and cases where the court is satisfied that exceptional circumstances exist), I do not think that one can properly regard it as representing an assessment on the standard basis in those cases to which it applies."

And in Broadhurst v Tan, Dyson MR said that "fixed costs and assessed costs are conceptually different".

Both of which seem to point towards construing an agreement that costs are "to be assessed" in default of agreement as contracting out of the fixed costs regime. That of course is difficult to reconcile with the actual result in Solomon -- it might be said that the court wrongly honed in on the phrase "reasonable costs" when it should have been focusing on the reference to assessment in default of agreement.