Post-Portal PADs: The Court of Appeal ends the Costs Debate

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07 February, 2017

Caren Sharp v Leeds City Council

The Court of Appeal confirmed last week that fixed costs apply to Pre-Action Disclosure Applications (PADs) which have dropped out of the personal injury portal.

You will recall our previous articles following the development of the argument that fixed costs should apply to PADs. Forbes has relentlessly run this argument since the implementation of the fixed costs regime and in 2015 successfully achieved the first known County Court Appeal judgment on the issue.

However, sadly that was not the end of the matter for one Claimant firm and the issue ended up in the Court of Appeal on the 24 January 2017. In the matter of Caren Sharp v Leeds City Council a pedestrian tripped over a pavement and fell, suffering a wrist injury. The Claimant issued a PAD application and sought assessed costs. At first instance, a district judge awarded the claimant the costs of the PAD application, in the sum of £1,250. On appeal Judge Saffman said the fixed costs regime should apply and he reduced costs to £305, mirroring the finding in Mark Davies v Asda where Forbes acted for the Defendant.

The matter proceeded to the Court of Appeal who found in favour of Leeds City Council. Briggs LJ said that to 'throw open' PAD applications to assessed costs would create an undesirable level of satellite litigation. During the Appeal hearing Lord Justice Jackson commented that if the Claimant's arguments were accepted that would be driving a horse and carriage through the fixed costs regime which was perhaps an indicator of what was to come.

Forbes comment

We are hopeful that the Court of Appeal judgment will now signal the end of such arguments. The judgment will come as a blow to claimant solicitors who have consistently used PADs as an easy way to increase costs for a relatively minimal amount of work.

We would also like to take the opportunity to remind readers that Court fees have increased since the original articles went out, thus rendering the '£305' rule of thumb redundant. Solicitors fixed costs remain at £125 + VAT for preparing the application and advocates fees also remain at this figure if the Application ends up at a hearing. Court fees will vary from £100 - £255 depending on whether the Application was made on notice or a hearing was requested.

Please contact Nigel McCloy by email or on 0113 244 6688.

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