CC (Manchester
CIVIL PROCEDURE - COSTS - PERSONAL INJURY
FIXED COSTS : PART 36 OFFERS : ROAD TRAFFIC ACCIDENTS : STANDARD BASIS : PART 36 OFFER MADE AND ACCEPTED PRIOR TO ISSUE OF PROCEEDINGS : RELEVANCE OF COSTS PROVISIONS OF PT 36 : APPLICABILITY OF CPR PT 45 FIXED COSTS REGIME WHERE COSTS ONLY PROCEEDINGS ISSUED UNDER CPR PT 44.12A : Pt 8 CIVIL PROCEDURE RULES 1998 : r.44.12A CIVIL PROCEDURE RULES 1998 : Pt 36 r.36.10 CIVIL PROCEDURE RULES 1998 : Pt 36 (I) r.36.10 CIVIL PROCEDURE RULES 1998 : Pt 45 (II) CIVIL PROCEDURE RULES 1998
Where Part 36 offers were made and accepted before any claim form was issued in respect of a road traffic accident, there could be no entitlement to costs under CPR Pt 36 r.36.10 as no proceedings were in existence. Consequently, where costs only proceedings were issued pursuant to CPR r.44.12A the court was bound to award only the fixed costs allowed by CPR Pt 45 (II) and the cost provisions of Pt 36 were irrelevant.
The appellant (C) appealed against a decision of a district judge that the respondent (S) was entitled to have her solicitors' costs assessed on the standard basis in accordance with CPR Pt 36 r.36.10 rather than under the fixed costs regime under CPR Pt 45 (II). S sustained injury in a road traffic accident. Part 36 offers were made by insurers with regard to S's general and special damages which were accepted within the relevant periods and no claim form was issued. The parties then failed to reach agreement in relation to S's solicitors' costs and S issued costs only proceedings under CPR Pt 8 in which she sought a determination of her costs "in accordance with CPR r.44.12A ". The district judge concluded that CPR Pt 36 r.36.10 operated and therefore the fixed costs regime under CPR 45 (II) did not apply. S submitted that either by virtue of the operation of Pt 36 or as a result of an agreement between the parties, she was entitled to have her costs assessed on the standard basis without reference to fixed costs under Pt 45. C maintained that because the claim was brought under the provisions of CPR r.44.12, the court was bound to assess the costs in accordance with Pt 45 and therefore the provisions of Pt 36 were irrelevant.
HELD: CPR Pt 36.10 was intended only to create an entitlement to costs if there were proceedings in existence. By Pt 7.2, proceedings started when the court issued a claim form at the request of the claimant. In the instant case, no claim form was issued and therefore there were no proceedings. Consequently, S was not entitled to any costs pursuant to Pt.36.10. If there was no right to costs under Pt 36.10, Pt 44.12 was not engaged and therefore there could be no deemed order for costs under that rule. Furthermore, in the absence of any proceedings arising out of the road traffic accident, the jurisdiction of the court to make an order for costs could arise either under Pt 44.12 or potentially in an action for damages for breach of the contract under which the original claim was compromised. As there was no claim for breach of contract, the court's jurisdiction was derived solely from Pt 44.12A and the court was bound by Pt 44.12A(4A) to assess the costs in accordance with Pt.45 (see paras.27-29 of judgment).
Appeal allowed
HELD: CPR Pt 36.10 was intended only to create an entitlement to costs if there were proceedings in existence. By Pt 7.2, proceedings started when the court issued a claim form at the request of the claimant. In the instant case, no claim form was issued and therefore there were no proceedings. Consequently, S was not entitled to any costs pursuant to Pt.36.10. If there was no right to costs under Pt 36.10, Pt 44.12 was not engaged and therefore there could be no deemed order for costs under that rule. Furthermore, in the absence of any proceedings arising out of the road traffic accident, the jurisdiction of the court to make an order for costs could arise either under Pt 44.12 or potentially in an action for damages for breach of the contract under which the original claim was compromised. As there was no claim for breach of contract, the court's jurisdiction was derived solely from Pt 44.12A and the court was bound by Pt 44.12A(4A) to assess the costs in accordance with Pt.45 (see paras.27-29 of judgment).
Appeal allowed
Counsel:
For the appellant: Dan Stacey
For the respondent: Roger Mallalieu
Solicitors:
For the appellant: Taylor Rose Law
For the respondent: MTA
For the appellant: Dan Stacey
For the respondent: Roger Mallalieu
Solicitors:
For the appellant: Taylor Rose Law
For the respondent: MTA