The Executors of the Estate of Kenneth Collins v The Chief Constable of Thames Valley Police

Fixed recoverable costs do not apply where a claim against the police includes, rather than exclusively comprises, a claim for an intentional tort within CPR 26.9(10)(e)(i). A reference to wrongful interference with goods may sufficiently intimate claims in conversion or trespass to chattels where the facts indicate deliberate dealing with property.

For transitional purposes, a claim includes Part 8 costs-only proceedings required to obtain a costs order. The substantive claim and costs proceedings form one continuing claim until all elements are concluded. Part 36 offer and acceptance do not contract out of fixed recoverable costs because the resulting entitlement to costs remains subject to the Civil Procedure Rules.

The claimant continued a claim originally brought by Kenneth Collins against the Chief Constable concerning firearms and ammunition destroyed by the police. The claim was intimated as one in negligence and/or wrongful interference with goods. Liability was admitted in principle, and the claim settled when the claimant accepted the defendant’s Part 36 offer before proceedings were issued.

The parties later disputed costs. Part 8 costs-only proceedings were issued after 1 October 2023, when the extended fixed recoverable costs regime had come into force. The court had to determine whether fixed recoverable costs were excluded by the claim’s intentional-tort character, whether the transitional provisions applied, and whether the Part 36 settlement expressly displaced the regime.

1. Intentional tort: The claim against the police included a claim for an intentional tort within CPR 26.9(10)(e)(i). The provision is inclusive, not exclusive. The claim did not need to be primarily or exclusively characterised as an intentional tort. The reference to wrongful interference with goods sensibly and inevitably suggested alternative claims in conversion and/or trespass to chattels. The deliberate destruction of the goods supported that characterisation. Mandatory multi-track allocation would therefore have followed, excluding fixed recoverable costs.
2. Transitional provisions: On the alternative issue, the Part 8 costs-only proceedings issued on 31 December 2024 triggered the fixed recoverable costs regime under rule 2 of the Civil Procedure (Amendment No. 2) Rules 2023. A claim includes costs-only proceedings issued to obtain a costs order. There is one continuing claim, which subsists until all elements, including costs, have been concluded. The amendments concerned procedural matters and their application did not offend the general principle against retrospective changes in law. The court regarded the transitional scheme as a clear bright-line regime and placed no reliance on the CPRC Minutes.
3. Part 36: Acceptance of the Part 36 offer did not amount to an express agreement to contract out of fixed recoverable costs. Part 36 invokes a procedural process. The entitlement under CPR 36.13 is an entitlement to costs determined under the Rules, subject to the express qualification where recoverable costs are fixed by the Rules.
4. Order: The claim fell within CPR 26.9(10)(e)(i). Fixed recoverable costs did not apply, and the claimant was entitled to an order for costs to be assessed on the standard basis if not agreed.