25 July, 2014
Since the advent of fixed costs Defendant's and Insurers alike have seen Claimant solicitors utilise ever changing methods to try and ensure that turnover remains high. It is well reported that abuse and medical negligence claims are on the increase however a lesser known source of regular income, pre-action disclosure applications (PADs), are becoming more and more regularly tapped. Claimant's solicitors are trying to circumnavigate fixed costs by claiming that post-portal PADs are not subject to them.
Close scrutiny of the CPR would suggest that this is not the case and Forbes have recently handled a number of post-portal PADs and successfully argued that fixed costs apply.
The relevant part of the CPR is Part 45.29H which deals with 'Interim applications'. This states:
"Where the court makes an order for costs of an interim application to be paid by one party in a case to which this Section applies, the order shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A."
Applying the appropriate costs from those Tables means that a standard post-portal PAD application dealt with by consent prior to the Hearing outside London would attract total fixed costs of £305, including VAT and a £155 court fee. Claimant's solicitors of course have been seeking sums well in excess of this sum and it is not unusual to see claims for costs in excess of £1000 for such applications. Forbes challenge costs on PADs on every occasion and regularly obtain orders that the Claimant is not entitled to costs. However, in the few where costs would be awarded this is good news.
It would appear that Claimant solicitors are either unaware of the aforementioned part of the CPR or they are alleging that the Defendant's conduct is sufficiently poor that the Court should exercise their discretion. In our view the fixed costs should apply save for in exceptional circumstances. Insurers should be aware of this part of the CPR and use it in the fight against excessive costs. It should however be remembered that judicial discretion remains intact under the new regime and conduct can still be taken into consideration.