It seems a year is a long time in costs jurisprudence. In July 2018, I wrote a piece for this blog which explored the case of Bratek v Clark-Drain Limited. In that case, the court considered the question of whether it was possible for fixed costs to be avoided if the consent order agreed at the conclusion of the action specified that costs were to be paid on the standard basis. In keeping with the general trend of the courts to limit avenues out of the fixed costs regime (notably evident in the Court of Appeal decision in Sharp v Leeds City Council), HHJ Yelton in Bratek found that the fixed costs provisions in CPR 45.29 were absolute and incapable of being avoided by the wording of a consent order. The point, therefore, appeared to be resolved, and another door to escape fixed costs was closed.
However, the issue did not remain settled for long. It arose again in the case of Adelekun v Lai Ho, reported in January of this year.
The case involved a road traffic accident claim commenced in the portal under the pre-action protocol for low value personal injury and, despite having exited the portal, settled without the case having been allocated to the multi-track, although the defendant had agreed that it should be so allocated. The defendant had made an offer to settle by way of Part 36. However, the parties eventually agreed to conclude by way of a Tomlin order, which included provision for the defendant to pay the claimant’s costs on the standard basis, to be subject to detailed assessment if not agreed.
The claimant contended that the wording of the Tomlin order was such as to disapply the fixed costs regime and sought to recover costs of £42,856.34. The defendant unsurprisingly disagreed and contended that only fixed costs were payable. At first instance, DDJ Harvey found that the fixed regime did apply and ordered that the Tomlin order be varied to that effect. The claimant appealed.
HHJ Wulwik placed heavy emphasis on the wording of the Tomlin order, which he noted was not an agreement to pay the usual fixed costs and was therefore incompatible with the regime. HHJ Wulwik considered that his view was supported by the parties, having agreed that the matter should have been allocated to the multi-track and that the order was consistent with that agreement. As a result, HHJ Wulwik determined that DDJ Harvey should not have varied the Tomlin order as he did; as such, the appeal was allowed.
We therefore have a decision which is completely contrary to the view expressed by HHJ Yelton in Bratek, and which once again provides a potential solution to any practitioner seeking to conclude a matter without becoming subject to fixed costs. Is that the end of the story? Well it would appear not, as the representatives of Lai Ho have confirmed that permission has been granted for them to take the matter to the Court of Appeal. So it may be that this author will be back again next year, reporting on a further twist to this area of the law.