Fixed costs apply to pre-action disclosure applications made after leaving the portal – see Sharp v Leeds City Council  EWCA Civ 33.
The Court of Appeal recently decided what judges called, “a short but important point of interpretation of the Civil Procedure Rules,” which originated in a claim against Leeds City Council by a pedestrian who was injured after tripping on a footpath.
Briggs LJ said the appeal from a decision of Wakefield County Court concerned whether the regime for fixed costs provided by Section IIIA of Part 45 for claims which started, but no longer continue, under the EL/PL Protocol applies to the costs of an application under Section 52 of County Courts Act 1984 for pre-action disclosure in connection with such a claim.
He said the court had been told different District Judges had answered this point differently, with some assuming the fixed costs regime applies, while others had summarily assessed costs on the standard basis.
In this case a District Judge awarded costs of a PAD application by the Claimant against the Council summarily assessing them at £1,250.
On appeal, another Judge concluded that the fixed costs regime applied to the PAD application, and reduced the costs payable to £305.
Briggs LJ said in his judgment:
“To throw open PAD applications generally to the recovery of assessed costs would in my view be to risk giving rise to an undesirable form of satellite litigation in which there would be likely to be incentives for the incurring of disproportionate expense, which is precisely what the fixed costs regime, viewed as a whole, is designed to avoid.
“The fixed costs regime inevitably contains swings and roundabouts, and lawyers who assist claimants by participating in it are accustomed to taking the rough with the smooth, in pursuing legal business which is profitable overall.”
As a result the Court of Appeal upheld the judge’s decision to award fixed costs only.