Much has been made of the Court’s conclusions that fixed costs do not apply to Multi Track cases. Trumpets are being blown and champagne popped.
However, behind all this is a much more worrying element of this Court of Appeal Judgment which could cause significant problems to Claimant litigators.
Briggs LJ in his run through the rules essentially decided that reference to a £25,000 cap in Part A Table 6B was a mistake and if the case was “properly started” in the Portal and exits, then unless it is allocated to the Multi track then you get fixed costs even if the value was more than £25,000 courtesy of 45.29B.
He did fixate on the “anomaly” of this cap for cases which conclude pre-issue for more than £25k as the table does not provide a fixed costs beyond that, but he declined to deal with the point after having raised it the first place. Thanks for that.
So, following this through if you think your case is worth £10k, and then it turns out it is worth £500k so it comes out of the portal, then it settles pre-allocation you’re still only getting fixed costs.
So, despite the portal clearly only applying to cases under £25,000.00; despite the header to Section IIIA clearly stating it only applies to “fixed recoverable costs” [i.e. cases under £25,000]; despite the obvious contradiction of a RTA clearly valued at £100,000 and not starting in the portal not being fixed costs, but one which increases in value after starting the portal is fixed costs; despite the COA finding that fixed costs only apply to FT cases (i.e. under £25k, subject to discretion); despite the previous predictable costs regime clearly stating that if the case was worth more than the cap (£10,000) it was standard costs; despite the fact that the limit on disbursement recovery at 45.29I is utterly inconsistent with cases over £25,000.00; the Court of Appeal has decided that this figure was a “mistake” because it is not repeated in the later sections of the table.
The fact that once stated, there was no need to repeat the £25,000 figure within the later table was apparently not considered; nor was the obvious practical drafting difficulty of including the figures within the table where the headers were concerned with stages of the litigation.
In fact, there is no persuasive evidence whatsoever that the inclusion of the £25,000 cap was a mistake nor in the Judgment any real effort to look at this issue. Arguably the only mistake was not shoehorning in the maximum figure of £25,000.00 on the rest of the table and assuming it was OBVIOUS.
So, where does leave you? Well, if your case falls out of the portal based on its value being higher than £25,000, and if your costs are likely to exceed fixed costs, then this Judgment appears to suggest that you must not settle this pre-allocation. Certainly before you submit that CNF if you feel it’s borderline on quantum is it worth ignoring the portal? After all what’s the worst that can happen if you settle under £25,000.00….fixed costs?
You may have scope to argue an O’Beirne v Hudson point that your case would have been a MT case had it been allocated, but absent an actual “judicially determined” allocation (and the Court of Appeal went to laborious length to make clear that value is but one factor to escape the Fast Track) who knows whether this would prevail.
Once upon a time we all knew that there was clearly and unequivocally a £25,000.00 cap. Briggs LJ said that, “to require the parties to guess…would introduce a damaging and unnecessary degree of uncertainty into a scheme which depends upon its predictability”; the Judgment of Qader, obiter or not, has, in fact, created precisely that uncertainty and unpredictability.
What should you do? Well if your Judge feels compelled to follow the COA then you can see who blinks first on their way to the Supreme Court or you need to look at the exceptional circumstances escape hatch and pay another court fee. The question then is; is an unallocated Multi Track case exceptional within the context of fixed Fast Track costs? Answers on a post card to the Court of Appeal.
Contact Lee Dixon here.