Exception made to the fixed costs regime complexity
In Crompton v Meadowcroft (Costs) – 2021 DDJ Ayers was asked to decide whether fixed costs would apply in a matter which had exited the portal but settled before it was allocated to the multi-track.
This was an RTA claim which was submitted to the portal in January 2017 and exited after 15 days. Liability was admitted in March 2017.
Proceedings were issued in early 2020, served in April 2020 and a defence was thereafter filed. A settlement offer was made in May 2020 and, once the CRU certificate had been received and considered, that offer was accepted in July 2020.
Meanwhile, directions questionnaires had been completed and returned and in September 2020 the matter was allocated to the multi-track. By this time, the matter had already been settled.
Points of dispute and replies, and supplemental versions, were prepared and DDJ Ayers was asked to consider whether there were exceptional circumstances entitling the Claimant to go beyond the fixed costs regime (CPR 49.29J).
It was the Claimant’s case that the matter was not straightforward and was not the type of case intended to be covered by the fixed costs regime. In this case there were more experts than usual, and there was extensive disclosure. There was also a possibility that the Claimant may have suffered disablement as a result of her injuries. The ultimate settlement figure was outside of the fast-track limit and this was a matter where the court had considered it appropriate for the multi-track; albeit it was post settlement by the time is was allocated.
The Defendant summitted that the nature of the fixed costs regime was that there were swings and roundabouts and sometimes a Claimant’s solicitor would be required to do more work than they would be recompensed. They accepted that there were additional experts and work but claimed that this did not meet the test of exceptionality.
In this case, DDJ Ayers was satisfied that the work required was significantly greater than might have been expected and the case did pass the test of exceptionality. The Claimant was therefore able to depart from the fixed costs regime.
The Deputy District Judge concluded by noting that the nature of the fixed costs regime was such that one must closely consider the circumstances of a claim if exceptionality was being argued but that she was, in this case, satisfied that the threshold had been met.
Whilst the Deputy District Judge specifically noted that she had not based her decision on the fact that the matter had ultimately been allocated to the multi-track, the fact that it was allocated to that track is still relevant in considering this judgment. It does appear logical, if not necessarily always the case, that where a case is sufficiently complex as to be allocated to the multi-track, there is also a reasonable chance that it would also pass the threshold for exceptionality when it comes to avoiding fixed costs.
The good news for practitioners is that this decision reiterates the fact that it is indeed possible to avoid recovering only fixed costs where one can establish that the case was sufficiently more involved as to justify it. However, the bar to determine ‘exceptionality’ is not a particularly low one. It is intended with the fixed costs regime that one will win some and lose some when it comes to costs, and in most cases it is this which will be the overriding factor.