The Court of Appeal has rejected an appeal on behalf of an injured pedestrian in a crucial costs dispute. Lord Justice Briggs ruled that the claimant in Sharp v Leeds City Council was entitled to only fixed costs for pre-action disclosure (PAD) in a case which had dropped out of the personal injury portal.
The original claim had been brought by Ms Sharp against Leeds City Council after she tripped over a pavement and fell injuring her wrist. She brought her claim through the Portal under the Employers’ Liability/ Public Liability (EL / PL) Protocol. The claim then ceased to continue within the EL / PL Protocol and thereafter fell within the Personal Injury (PI) Protocol. Leeds City Council failed to give pre-action disclosure and Ms Sharp made a PAD application. By the time of the hearing at Wakefield County Court, the Council had given the necessary disclosure, but DJ Heppell awarded Ms Sharp the costs of the PAD application and summarily assessed them at £1,250. On appeal Judge Saffman concluded that the fixed costs regime applied, with the result that payable costs were reduced to £305.
In the Court of Appeal lawyers acting for Ms Sharp argued that the regime for fixed recoverable costs was ‘incompatible’ with the general rule for the costs of PAD applications. Furthermore, they maintained that confining claimants to fixed costs would, in their opinion, be an ‘inadequate sanction for widespread procedural misconduct by defendants’.
However, L J Briggs rejected their arguments stating:
‘To throw open PAD applications generally to the recovery of assessed costs would in my view be to risk giving rise to an undesirable form of satellite litigation in which there would be likely to be incentives for the incurring of disproportionate expense, which is precisely what the fixed costs regime, viewed as a whole, is designed to avoid.’
‘The plain object and intent of the fixed costs regime in relation to claims of this kind is that, from the moment of entry into the portals pursuant to the EL/PL protocol (and, for that matter, the RTA protocol as well), recovery of the costs of pursuing or defending that claim at all subsequent stages is intended to be limited to the fixed rates of recoverable costs, subject to only a very small category of clearly stated exceptions.’
L J Briggs added that the time may come when fixed costs were more generous, but for now the rules were prescribed by the regime and the court was not entitled to make a summary assessment:
‘The fixed costs regime inevitably contains swings and roundabouts, and lawyers who assist claimants by participating in it are accustomed to taking the rough with the smooth, in pursuing legal business which is profitable overall.’
Whilst L J Briggs acknowledged that there were obviously problems with the fixed costs regime, the solution to these problems was not, in his opinion, to subject the fixed costs regime to an implied exemption: rather the solution was to keep the situation under review and create a more variable level of recoverable costs liability:
‘The fixed costs regime needs to be kept under review, and defects in it remedied by adjustment of the fixed allowances where that can be shown to be justified.’