Allan John Doyle v M&D Foundations & Building Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Edis,Lord Justice Baker |
| Judgment Date | 08 July 2022 |
| Neutral Citation | [2022] EWCA Civ 927 |
| Docket Number | Case No: CA-2021-000557 (formerly A2/2021/0729) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 927
Lord Justice Baker
Lord Justice Phillips
and
Lord Justice Edis
Case No: CA-2021-000557 (formerly A2/2021/0729)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT SHEFFIELD
(HER HONOUR JUDGE INGRAM)
(DY5YJ992)
ON APPEAL FROM THE COUNTY COURT AT DONCASTR
(DISTRICT JUDGE ROGERS)
(DY5YJ992)
Royal Courts of Justice
Strand, London, WC2A 2LL
Kevin Latham (instructed by Atherton Godfrey LLP) for the Claimant/Respondent
Roger Mallalieu QC (instructed by DWF Law LLP) for the Defendant/Appellant
Hearing date: 22 March 2022
Further written submissions: 24 and 28 March 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 8 July 2022 by circulation to the parties or their representatives by email and by release to the National Archives.
By a consent order dated 18 July 2018 (“the Order”) the appellant was ordered to pay the respondent damages of £5,000 in respect of an injury the respondent had suffered during the course of his employment by the appellant. The Order further provided that the appellant was to pay the respondent's costs, “such costs to be the subject of detailed assessment if not agreed”. This appeal concerns the proper interpretation of that provision.
The respondent lodged a bill of costs for detailed assessment on the standard basis, citing the terms of the Order. The appellant disputed that approach, contending that, as an ex-protocol low-value personal injury (employers' liability or public liability) claim (an “ex-Protocol claim”), the case fell within the fixed recoverable costs regime set out in section IIIA of CPR Part 45 and that the reference to detailed assessment, interpreted in that context, referred to the process of determining the amount of such fixed costs and disbursements (to the extent there was any disagreement).
District Judge Rogers rejected the appellant's contention, upholding (following an oral hearing) his provisional decision on the papers that the fixed costs regime did not apply because the parties had contracted out of it, as reflected in the express terms of the Order. On 13 May 2019 he assessed the bill of costs at £14,467.44, with interest to be agreed. On 10 February 2021 Her Honour Judge Ingram (“the Judge”) dismissed the appellant's appeal against that decision.
The appellant brings this second appeal with permission granted by Stuart-Smith LJ.
The facts
The respondent was injured on 12 May 2014 whilst working on a construction site in the course of his employment by the appellant. Details of the accident and of the injury suffered are not relevant to this appeal.
As the accident occurred after 31 July 2013 and gave rise to a claim for damages for personal injury said to be worth less than £25,000 (but above the small claims track limit), the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims (“the Protocol”). The respondent commenced a claim under the Protocol on 25 November 2016 by sending a Claim Notification Form (“CNF”) to the appellant. The appellant did not send a CNF response to the respondent (but disputed liability), with the result that the Protocol ceased to apply to the claim.
These proceedings were commenced by the appellant on 16 May 2017 and the respondent filed a defence on 6 October 2017. The case was thereafter allocated to the fast track and the matter was listed for trial on 19 July 2018.
On 16 July 2018 the parties engaged in without prejudice negotiations to compromise the claim. In that context, the appellant, through its solicitors, made a Part 36 offer of £5,000 (taking into account a 30% deduction for contributory negligence) in full and final settlement of the claim.
The respondent's solicitors did not return the Notice of Acceptance of that offer, but instead wrote back the same day, stating as follows:
“We confirm that the [respondent] is willing to agree quantum, on the basis that this is after and reflects the agreed apportionment on liability, at £5,000 though, for the avoidance of doubt and the reasons which follow, our client is not hereby accepting the [appellant's] Part 36 offer.
The [appellant's] Part 36 offer has been made at a very late stage and well within the 21 day period referred to in Part 36.13(4). In these circumstances we consider an Order is required to finalise matters and enclose an Order, accordingly, for you to endorse with consent….”
The draft order contained the provision as to costs referred to in paragraph 1 above. The appellant's solicitors made inconsequential manuscript amendments to the heading of and recital to the draft order and signed the revised version, returning it to the respondent's solicitors on 16 July 2018 “for your consideration”.
The respondent's solicitors duly signed the draft as revised and filed it at Court, resulting in the production of the Order.
The relevant rules
It was common ground that the Order (and the agreement it reflected) is to be interpreted in the context of the relevant provision of the Civil Procedure Rules 1998 (“the rules”) relating to costs and, in particular, those relating to detailed assessment and to fixed costs in ex-Protocol claim cases. The respondent contends, as explained below, that the rules relating to Part 36 offers to settle are also relevant.
General rules about costs: CPR Part 44
After setting out the court's discretion as to payment, amount and timing of costs in rule 44.2, the rules make the following provisions as to the assessment of costs so ordered:
i) Rule 44.3 provides that assessment will be on the standard basis or the indemnity basis. However, rule 44.3(4)(a) provides:
“Where:
a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or
b) makes an order for assessment on a basis other than the standard basis or the indemnity basis),
the costs will be assessed on the standard basis.”
ii) Rule 44.6 provides:
“(1) Where the court orders a party to pay costs to another party (other than fixed costs), it may either –
a) make a summary assessment of the costs; or
b) order detailed assessment of the cost by a costs officer,
unless any rule practice direction or enactment provides otherwise…
(2) A party may recover the fixed costs specified in Part 45 in accordance with that Part.”
Rule 44.1 defines “detailed assessment” as the procedure by which the amount of costs is decided by a costs officer in accordance with Part 47.
Ex-Protocol Fixed Recoverable Costs: Section IIIA of CPR Part 45
Rule 45.29D provides for fixed costs in ex-Protocol cases in the following terms:
“Subject to rules 45.29F, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, in a claim started under the EL/PL Protocol or in a claim to which the Pre-Action Protocol for Resolution of Package Travel Claims applies, the only costs allowed are –
(a) fixed costs in rule 45.29E; and
(b) disbursements in accordance with rule 45.29I.”
Rule 45.29E sets out the fixed costs recoverable in tabular form, determined by the stage at which the claim is settled or disposed of and the amount of the damages agreed or awarded. Rule 45.29F provides for costs orders in favour of the defendant, rule 45.29H provides for costs of interim applications and rule 45.29I provides that claims for specified disbursements may be allowed.
Rule 45.29J deals with claims for costs exceeding the fixed recoverable costs provided for in rule 45.29E as follows:
“(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.
(2) If the court considers such a claim to be appropriate, it may—
(a) summarily assess the costs; or
(b) make an order for the costs to be subject to detailed assessment.
(3) If the court does not consider the claim to be appropriate, it will make an order—
(a) if the claim is made by the claimant, for the fixed recoverable costs; or
(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,
and any permitted disbursements only.”
Even if the court does decide to assess costs under rule 45.29J(2) rather than simply awarding fixed costs, rule 45.29K provides that costs will still be limited to the amount of fixed costs if the assessed costs do not exceed fixed recoverable costs by 20%.
The rules do not make provision for the parties to contract out of the fixed costs regime, but it is recognised that there is no bar on them doing so: see Solomon v Cromwell Group plc [2011] EWCA Civ 1584, [2012] 1 WLR 1048 per Moore-Bick LJ at [22], cited in Adelekun v Ho [2019] EWCA Civ 1988, [2019] Costs LR 1963 by Newey LJ at [11].
Detailed assessment: CPR Part 47
Rule 47.6(1) provides that detailed assessment proceedings are commenced by the receiving party serving on the paying party (a) a notice of commencement in the relevant practice form; (b) a copy or copies of the bill of costs, as required by Practice Direction 47; and (c) if required by Practice Direction 47, a breakdown of the costs claimed for each phase of the proceedings.
Rule 47.9 provides for the paying party to dispute any time in the bill of costs by serving points of dispute. If the paying party does so, rule 47.14 sets out the procedures for convening a detailed assessment hearing.
Offers to settle: CPR Part 36
Part 36.13(1) sets out the basic provision in relation to the costs consequence of accepting a Part 36...
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