01 July, 2015
On the 9 June 2015 Forbes sought the first Appeal decision on the issue of whether fixed costs apply to pre-action disclosure applications for cases which started life in the Portal (Post-Portal PADs). Over recent months, Forbes has vehemently argued that Post-Portal PADs are interim applications and that fixed costs should therefore apply.
Despite a number of successful attempts at maintaining this argument, a Deputy District Judge (DDJ) in Bath County Court found that rule 45.29H did not apply and that the Defendant was trying to 'overturn the usual provisions of courts throughout the land' by suggesting that fixed costs apply.
However the DDJ commented that whilst he did not support the Defendant's stance, as it ran contrary to the practice of the Court, there was a real and justifiable argument being made by the Defendant and the DDJ granted leave to Appeal. Forbes maintained their robust approach to this issue and Appealed.
The matter of Mark Davies v Asda appeared before HHJ Denyer QC at Bristol County Court and we are pleased to report that the Appeal was granted in what should see an end to the debate on this matter. HHJ Denyer commented that 'an application for pre-action disclosure is indeed an interim application - seeking an interim order, for the purposes of 45.29H'.
This Judgment is the first known Appeal decision relating to this issue and is a culmination of a significant effort on the part of Forbes to ensure that any potential loopholes to the new fixed costs regime tackled firmly and closed as promptly as possible.
Should you have any queries in relation to the Judgment or fixed costs generally please do not hesitate to contact one of the Forbes Insurance team who will be glad to assist you.