Sharp v Leeds City Council

Where a personal injury claim begins under the EL/PL or RTA Protocol but later leaves it, the fixed recoverable costs regime governs the costs of pursuing or defending the claim at all subsequent stages, subject to its stated exceptions. A pre-action disclosure application made in furtherance of such a claim is an interim application within rule 45.29H of the Civil Procedure Rules.

The application’s separate procedure and jurisdiction do not remove it from the underlying claim. The fixed costs provisions displace the more generous costs regime ordinarily applicable under rule 46.1. Exceptional circumstances may justify an award exceeding fixed costs under rule 45.29J. The frequency of deliberate non-compliance with protocol disclosure obligations does not necessarily prevent that conduct from being exceptional.

The claimant pursued a low-value personal injury claim against a local authority after tripping on an allegedly defective paving slab. The claim began in the EL/PL Protocol but left the Protocol after the authority failed to provide a timely response. The authority then failed to make the disclosure required by the Personal Injury Protocol, prompting an application under section 52 of the County Courts Act 1984.

A district judge awarded the claimant £1,250 in assessed costs under rule 46.1 of the Civil Procedure Rules. On appeal, HHJ Saffman held that the fixed recoverable costs regime applied and reduced the award to £305. The claimant brought a second appeal. The issue was whether a pre-action disclosure application relating to a claim which had begun, but no longer continued, under the EL/PL Protocol was governed by rule 45.29H or rule 46.1.

1. Appeal dismissed. The fixed recoverable costs regime applied to the claimant’s pre-action disclosure application. Briggs LJ delivered the judgment, with which Irwin and Jackson LJJ agreed.

2. The object of Section IIIA of Part 45 of the Civil Procedure Rules is to limit the recoverable costs of pursuing or defending a claim from its entry into the EL/PL or RTA Portal through all subsequent stages. The limitation is subject only to the small category of stated exceptions. Implied exceptions for claim-related activity would undermine the regime’s purpose of securing proportionality in modest claims. Rules 45.29A(1) and 45.29D expressly support that conclusion because the prescribed fixed costs and disbursements are the only costs allowed, subject to the specified provisions within the regime.

3. A pre-action disclosure application is sufficiently connected with the underlying personal injury claim to constitute an interim application in a case to which Section IIIA applies. It responds to a defendant’s failure to meet protocol disclosure obligations, advances preparation of the damages claim and may facilitate settlement. It follows commencement of the claim through the uploading of the Claim Notification Form and precedes settlement or final judgment. Its procedural independence and separate statutory jurisdiction do not alter that conclusion.

4. Rule 46.1 ordinarily makes specific provision for the costs of pre-action disclosure applications. Where the fixed costs regime applies, however, provisions elsewhere in the Rules permitting more generous recovery are displaced. Any practical incompatibility between rules 46.1 and 45.29F or 45.29H therefore does not create an exception.

5. The court recognised that fixed recovery might reimburse only a small part of the expenditure required for a successful disclosure application and might weaken its effectiveness as a sanction for protocol default. The solution was not an implied exception permitting assessed costs. A claimant may invoke rule 45.29J where exceptional circumstances exist. Deliberate disregard of disclosure obligations is not necessarily unexceptional merely because it occurs frequently. Any broader defect in the allowances should be addressed by review and adjustment of the fixed-cost rules.

6. The express exclusion of pre-action disclosure applications from qualified one-way costs shifting under rule 44.13(1), without a corresponding exclusion from fixed costs, did not show that the drafter intended fixed costs to be inapplicable. That omission was equivocal and did not displace the clear language and purpose of Section IIIA.

1. Court of Appeal (Civil Division): The claimant’s second appeal was dismissed in [2017] EWCA Civ 33. The conclusion that fixed recoverable costs applied was affirmed.

2. County Court, HHJ Saffman: The district judge’s costs decision was reversed. The fixed costs regime was held applicable, reducing the recoverable costs from £1,250 to £305.

3. County Court, DJ Heppell: The claimant received the costs of her pre-action disclosure application, summarily assessed at £1,250 under rule 46.1 rather than the fixed costs regime.