Fixed Fees – Case Updates

Clinical negligence cases

The government is proceeding with its plans to cap recoverable costs in clinical negligence cases by setting up a working group with a view to cutting costs on claims worth less than £25,000.00. It is anticipated that the working group will be in a position to publish its recommendations in the Autumn of 2018. The group, which at the time of writing consists of representatives from the legal profession and the NHS, will consider Jackson’s proposals on fixed costs.  An announcement will be made in due course.

Holiday claims

Following the 97th CPR update, the pre-action protocol for resolution of package travel claims came into force on 7th May 2018.  Since 2013, statistics have shown that there has been a 500% rise in travel claims and over £240 million was spent by the travel industry in defending gastric illness claims.  Actual recorded cases of sickness claims have reduced over the years however – even though some cases will be genuine, the massive increase in claims does not compare with the sliding figures on recorded claims.

The update to CPR 45 includes fixed fees for travel claims in order to curb the spiralling costs of litigation. CPR 45.29E Table 6D denotes the amount of fixed fees allowed within travel claims:

  • settlement between £1,000 and £5,000 – fixed costs £950 and 17.5% of the damages
  • claims worth up to £10,000 – fixed costs £1,855 and 10% of the damages over £5,000
  • claims exceeding £10,000 – fixed costs £2,370 and 10% of damages over £10,000.

Bratek v Clark-Drain Ltd 2018 (Cambridge County Court 2018)

The parties had settled a personal injury matter by consent with the Defendant paying the Claimant’s damages in the sum of £10,000.  In terms of costs, the consent order noted that “the Defendant pay the Claimant’s solicitor’s costs of the action, inclusive of VAT and disbursements on the standard basis, to be assessed if not agreed”.

The Claimant argued that the consent order superseded the fixed costs set out in CPR 45.29A due to the agreement made with the Defendant.  Of course, the Defendant disagreed and argued that the order did not supersede CPR 45.29A.

The first instance Judge had agreed with the Claimant, however the Appeal Judge overruled the decision and confirmed that in accordance with the principles in Sharp v Leeds City Council [2017],  the “plain object of intent of the fixed costs regime for claims started but not continuing under the protocol was that from the moment of entry into the portal pursuant to the protocol recovery of the costs of pursuing or defending that claim and all subsequent stages was intended to be limited to the fixed rates of recoverable costs subject only to a very small category of clearly stated exceptions” (para 8).

Williams v The Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA

This employment liability claim was conducted without the use of the portal.  It was the Claimant’s argument that because there were two Defendants being pursued at the outset then it was a claim outside the EL/PL portal.  However, the Court held that it was evident that the claim was clearly a one Defendant claim and it concluded that the matter should have gone through the portal at the outset.  The Court regarded the Claimant’s behaviour as unreasonable and awarded fixed costs using the sufficient width of discretion under CPR 44.

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