Mrs Siu Lai Ho v Miss Seyi Adelekun
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Males |
| Judgment Date | 19 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/2615 |
| Date | 19 November 2019 |
[2019] EWCA Civ 1988
Sir Geoffrey Vos, Chancellor of the High Court
Lord Justice Newey
and
Lord Justice Males
Case No: A2/2018/2615
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Wulwik
Claim number: A06YQ205
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Roy (instructed by Taylor Rose TTKW) for the Appellant
Mr Roger Mallalieu (instructed by Bolt Burdon) for the Respondent
Hearing date: 31 October 2019
Approved Judgment
In April 2017, the parties to this appeal compromised a claim which the respondent, Miss Seyi Adelekun, had brought against the appellant, Mrs Siu Lai Ho, following a road traffic accident. What is now at issue is the extent of the appellant's liability for costs. The respondent contends that the appellant is liable to pay her costs on what might be called the “conventional” basis, under which costs are assessed item by item by reference to the work done. The appellant, on the other hand, maintains that the fixed costs regime for which Section IIIA of CPR Part 45 provides is applicable.
We were told that our decision could affect many other cases. It is noteworthy in that context that more than six million claims have apparently been made pursuant to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”) (see Aldred v Cham [2019] EWCA Civ 1780, at paragraph 1).
The facts
The accident giving rise to the litigation happened on 26 June 2012. On 15 January 2014, the respondent notified the appellant's insurer of a claim in accordance with the RTA Protocol. The appellant not having admitted liability, the claim left the RTA Protocol and proceedings were issued on 7 January 2015. The claim was allocated to the fast track, but on 18 January 2017 the respondent issued an application for re-allocation to the multi-track pursuant to CPR 26.10 on the basis that the value of the claim had increased. The application was listed to be heard on 24 April 2017, but on 19 April 2017 the appellant's solicitors sent the respondent's solicitors what was described in the document as a “Part 36 Offer Letter”. This read as follows:
“We are instructed by the Defendant to offer £30,000.00 gross in full and final satisfaction of this claim.
This offer is made in accordance with Part 36 of the Civil Procedure Rules. The terms of the offer are as follows:
1. Our client offers £30,000.00 by way of a gross lump sum in full and final settlement of your client's claim. This offer is made in relation to the whole of your client's claim.
2. The sum is gross of benefits repayable to the CRU….
3. If the offer is accepted within 21 days, our client will pay your client's legal costs in accordance with Part 36 Rule 13 of the Civil Procedure Rules such costs to be subject to detailed assessment if not agreed.
If your client accepts the offer after the 21 day period then either we will need to agree the costs liability or the court will have to make an order as to costs.”
On the following day, 20 April 2017, the appellant's solicitors emailed the respondent's solicitors asking them to confirm whether they had received instructions on the appellant's “Part 36 offer” and also stating that they (the appellant's solicitors) could “consent to the matter being multi-track”.
On 21 April 2017, the respondent's solicitors sent the appellant's solicitors an email in which they said this:
“As discussed, I am pleased to confirm that the Claimant will accept your offer of settlement in the sum of £30,000. I have attached a consent order setting out the terms of settlement.
The court have requested that we submit a consent order so that the hearing on Monday may be vacated. I should be grateful if you could sign the attached consent order and return it to me so that I may file it at court.”
The draft order attached to the email was in “ Tomlin” form. It recited that the parties had agreed the terms of settlement set out in the schedule and provided for all further proceedings to be stayed except for the purpose of carrying those terms into effect. There was also provision for the hearing listed for 24 April 2017 to be vacated and for the appellant to pay “the reasonable costs of the [respondent] on the standard basis to be the subject of detailed assessment if not agreed”. An order in that form was thereafter made by consent on 24 April.
The parties subsequently parted company over costs. According to the appellant, the respondent was entitled to no more than fixed costs, which Mr Andrew Roy, who appeared for the appellant, told us had been estimated at about £14,500 to £16,000. The respondent, in contrast, argued that she was not limited to fixed costs and claimed some £42,000.
The dispute came before Deputy District Judge Harvey, sitting in the County Court at Central London, on 7 February 2018. He concluded that the fixed costs regime applied, but he was reversed on appeal by His Honour Judge Wulwik, who held that the fixed costs regime was not applicable. The appellant now challenges that decision in this Court.
The context
The fixed costs regime
CPR Part 45 provides for fixed costs to be payable in a number of situations. Section IIIA deals with, among other things, claims initiated under the RTA Protocol, as the respondent's was. CPR 45.29B states that, “Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for so long as the case is not allocated to the multi-track”, the only costs allowed in a claim started under the RTA Protocol are “the fixed costs in rule 45.29C” and “disbursements in accordance with rule 45.29I”. So far as disbursements are concerned, CPR 45.29I(1) provides that, subject to specified exceptions, the Court will not allow a claim for any type of disbursement other than those mentioned in paragraphs ( 2) or (3), which are in these terms:
“(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the disbursements referred to in paragraph (1) are—
(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;
(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;
(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;
(d) court fees;
(e) any expert's fee for attending the trial where the court has given permission for the expert to attend;
(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;
(g) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and
(h) any other disbursement reasonably incurred due to a particular feature of the dispute.
…
(3) In a claim started under the RTA Protocol only, the disbursements referred to in paragraph (1) are also the cost of—
(a) an engineer's report; and
(b) a search of the records of the—
(i) Driver Vehicle Licensing Authority; and
(ii) Motor Insurance Database.”
CPR 45.29J (termed a “safety valve” by Briggs LJ in Qader v Esure Services Ltd [2016] EWCA Civ 1109, [2017] 1 WLR 1924, at paragraph 59) allows sums in excess of fixed costs to be recovered in exceptional circumstances. It provides:
“(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.”
The fixed costs regime for which CPR Part 45 provides is comprehensive in nature (see Hislop v Perde [2018] EWCA Civ 1726, [2019] 1 WLR 201, at paragraphs 29, 30 and 49). In Solomon v Cromwell Group plc [2011] EWCA Civ 1584, [2012] 1 WLR 1048, Moore-Bick LJ noted at paragraph 20 that the “whole purpose” of introducing the fixed costs rules in Section II of Part 45 was:
“to impose a somewhat rough and ready system in a limited class of cases because the commercial interests behind the parties who bear the burden of large numbers of such cases considered that, taken overall, it was fair and saved both time and money”.
As Briggs LJ observed in Sharp v Leeds City Council [2017] EWCA Civ 33, [2017] 4 WLR 98 at paragraph 31, “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 Portal 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 only to a very small category of clearly stated exceptions”. In a similar vein, Coulson LJ said this about the fixed costs regime in Hislop v Perde at paragraph 50:
“The whole point of the regime is to ensure that both sides begin and end the proceedings with the expectation that fixed costs is all that will be recoverable. The regime provides certainty. It also ensures that, in...
To continue reading
Request your trial
-
Mrs Siu Lai Ho v Miss Seyi Adelekun
...reversal of a decision made by Deputy District Judge Harvey, sitting in the County Court at Central London, on 7 February 2018 (see [2019] EWCA Civ 1988, [2019] Costs LR 1963). It is common ground that, in consequence, it is appropriate for us to make a costs order in the appellant's favou......
-
Allan John Doyle v M&D Foundations & Building Services Ltd
...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 20 Rule 47.6(1) provides that detailed assessment proceedings ar......
-
Mrs Siu Lai Ho v Miss Seyi Adelekun
...in October 2018 but the Court of Appeal allowed the further appeal and decided that only fixed recoverable costs were payable: see [2019] EWCA Civ 1988; [2019] Costs LR 1963. Ms Ho was awarded her costs of the appeal to the Court of Appeal, the appeal to His Honour Judge Wulwik and the hea......
-
MGS (a protected party by KWM, his mother and Litigation Friend) v University Hospitals Bristol and Weston NHS Foundation Trust
...The orthodox canons of contractual interpretation apply. The court must establish objectively what the term means. In Ho v Adelekun [2019] EWCA Civ 1988, each side approached the case on the basis that the respondent had accepted the appellant's Part 36 offer made by a letter dated 19 Apri......