BILL OF COSTS STRUCK OUT IN FIXED COSTS CASE: CPR 36.20(11) GIVES RISE TO A “DIFFERENT, SELF-CONTAINED PROCEDURE” FOR DISPUTES AS TO DISBURSEMENTS

February 4, 2020 · by · in Assessment of Costs, Costs, Fixed Costs, Striking out

In Nema v Kirkland [2019] EWHC B15 (Costs) Master Leonard struck out a claimant’s bill of costs on the grounds that the action was subject to the fixed costs regime and an assessment should never have been sought. The rules have a relatively simple and cheap procedure for dealing with disputes in relation to disbursements in fixed costs cases,  the claimant should have made an application under   CPR 36.20(11).

“it is evident from that provision that the court is under CPR 36.20(11) required to make an order which determines the amount of costs due, whether to a claimant or a defendant. That is neither summary assessment nor detailed assessment. It is a different, self-contained procedure”

THE CASE

The claimant was injured in a road traffic accident subject to the fixed cost provisions. A Claims Notification Form was sent and the matter resolved for £5,500. There was an issue in relation to the costs of the  disbursements. The claimant issued detailed assessment proceedings.

THE DEFENDANT’S ARGUMENT

The Master considered the defendant’s argument.

    1. Mr Waszak for the Defendant submits that the Claimant should not have started detailed assessment proceedings.
    2. Upon accepting the Defendant’s Part 36 offer, the Claimant became, under CPR 36.20, entitled to the appropriate stage of fixed recoverable costs under CPR 45, Section IIIA (CPR 36.20(2)) and to disbursements in accordance with CPR45.29I (CPR 36.20(13)).
    3. The extent of the costs dispute between the parties in this case is the sum of £564 for disbursements. Those disbursements do not fall within CPR 45.29I(2)(a)-(g). With the exception of the engineer’s report (which is provided for by CPR 45.29I(3)(a)) the only option for the recovery is under CPR 45.29I(h), as “… any other disbursements reasonably incurred due to a particular feature of the dispute”. The issue of the extent to which such disbursements can be recovered under CPR 45.29I should be resolved by an application to the court under CPR 36.20(11).
    4. CPR 36.20 was introduced (as CPR 36.10A) by the same statutory instrument (SI 2013/1695) that created CPR 45 Section IIIA. It is materially different to CPR 36.13, which sets out a claimant’s entitlement to costs (on acceptance of a Part 36 offer within the relevant period) in a case to which CPR 45, Section IIIA does not apply. CPR 36.13(3) envisages that, where recoverable costs are not fixed, they will be subject to assessment in the ordinary way if not agreed. CPR 36.20 provides for a different procedure where recoverable costs are fixed.
    5. Section IIIA of CPR 45 does not, as this case illustrates, eliminate the possibility of disagreement. In that situation, the clear mechanism provided by CPR 36.20(11) is that the court must make an order as to costs. That requirement is not met by commencing detailed assessment proceedings under CPR 47. An application must be made to the court for an order. The court will then make an order for costs, applying the fixed recoverable cost rules and so eliminating the need for detailed assessment proceedings.
    6. Mr Waszak refers to the words of Dyson MR in Broadhurst v Tan [2016] EWCA Civ 94 at paragraph 8:

“The 2013 Amendment Rules… introduced changes to Part 36 to take account of Section IIIA. A new rule 36.10A legislated for the treatment of costs in Section IIIA where a defendant’s Part 36 offer was accepted by the claimant. The effect of this provision was that the claimant would receive the fixed costs provided for by Section IIIA. This disapplied the usual rule, contained in the pre-existing rule 36.10 , that where a Part 36 offer is accepted, the claimant is entitled to costs assessed on the standard basis to the point of acceptance..”

    1. By unambiguously limiting a claimant to fixed recoverable costs and permitted disbursements, CPR 36.20 is intended to eliminate the need for detailed assessment proceedings. The language of the rules indicates that cases subject to fixed recoverable costs fall within self-contained provisions of CPR 45 and generally outside the scope of detailed assessment.
    2. In support Mr Waszak cites, by way of example, the wording of CPR 44.6(2) and the reference to “the only costs allowed” at CPR 45.29B. That wording, he submits, removes the scope for any potential detailed assessment, with its attendant cost. That was one of the critical motives for implementing fixed recoverable costs. The costs of any necessary application for an order under CPR 36.20(11) are, consistently with CPR 45.29B, provided for by CPR 45.29H (interim applications).
    3. The only conceivable situation in which it would be appropriate for a claimant to commence detailed assessment proceedings following the acceptance of a defendant’s Part 36 offer in a case to which CPR 45, Section IIIA applies, would be where a claimant seeks costs exceeding fixed recoverable costs under CPR 45.29J. It is not suggested by either party that this is such a case.
    4. Mr Waszak refers me to the judgment of Master Haworth in Mughal v Samuel Higgs & EUI Limited (SCCO unreported, 6 October 2017) in which the Master struck out a Notice of Commencement served by a claimant entitled to fixed costs in accordance with CPR 45 Section IIIA.
    5. It was not contended (paragraph 4 of Master Haworth’s judgment) that there was a case for recovery of additional costs under CPR 45.29J. Master Haworth found (paragraph 9) that the whole purpose of the fixed costs regime was to avoid the necessity of either summary or detailed assessment. It was not open to the claimant to draft a bill of costs and use the detailed assessment procedure, so increasing costs in proceedings where fixed costs were meant to apply (paragraph 10). In his view (paragraph 6) CPR 36.14(5) empowered the court to deal with issues of costs and the appropriate course, in fixed costs cases, was for an application to be made to the court.
    6. Mr Waszak argues that, properly construed, disbursements falling within CPR 45.29I should properly be regarded as fixed costs. Not every item of fixed costs crystallises automatically. For example, claimant solicitors’ costs are quantified by reference to the amount of damages received.
THE CLAIMANT’S ARGUMENTS
The Claimant’s Submissions
    1. Mr Hogan for the Claimant says that at the heart of this application lies the recoverable cost of determining the Claimant’s right to the disputed disbursements. A provisional assessment under CPR 47.15 will permit the Claimant to recover costs of up to £1,500 plus VAT. An application under CPR 20(11) would allow the Claimant to recover a fee of £250 plus VAT.
    2. CPR 36.13(3) provides for assessment on the standard basis “Except where the recoverable costs are fixed by these Rules…” but the question is whether the recoverable disbursements in issue in this case are fixed costs.
    3. The definition of “costs” at CPR 44.1 expressly includes disbursements, whereas the definition of “fixed costs” refers only to costs the amount of which is fixed by the rules. It follows that even in cases governed by Section IIIA of CPR 45, disbursements the amount of which is not fixed are not “fixed costs”.
    4. As the right to costs arises under CPR 36.13(1), the Claimant has the benefit of a deemed costs order under CPR 44.9(1)(b). That is the authority for assessment on the standard basis under CPR 36.13(3). CPR 36.20 sets out the parameters of the costs to be recovered on the basis of that authority, including reasonable disbursements in accordance with CPR 45.29I.
    5. Properly construed, says Mr Hogan, CPR 36.13 and CPR 36.20 provide, where costs are fixed but disbursements are not, for an assessment in which fixed costs will be allowed for solicitors’ fees and disbursements assessed on the standard basis. There is no authority or logical basis for treating non-fixed disbursements as fixed costs.
    6. As for the assessment procedure, there is no provision in the Civil Procedure Rules for the assessment of costs under CPR 36.13(3) to be carried out on a summary basis. The power to make a summary assessment only arises when the court makes a costs order. Even then, the court’s discretion to make a summary assessment of costs is limited by the provisions of CPR 44.6 and Practice Direction 44 (including paragraph 8.3 which provides, where a party is entitled to costs, some of which are fixed and some which are not, for the court to assess the non-fixed costs on the standard basis). It does not arise at all where there is a deemed order under CPR 44.9(1)(b).
    7. Paragraph 9.7 of Practice Direction 44 is particularly germane, providing as it does that only the judge who has heard a case can summarily assess the costs. On settlement following a Part 36 offer, there will have been no hearing at all.
    8. CPR 36.14(5) has no application. That power arises where the liability for costs must be determined by the court. There is no basis for suggesting that it creates a self-contained regime for applications for the summary assessment of disbursements in fixed costs cases.
    9. Nor is it appropriate to treat an application for an order under CPR 36.20(11) as an “interim application”. An interim application may, for example, be for pre-action disclosure, but it does not apply to the quantification of costs. For that we have the provisions of the Civil Procedure Rules for summary and detailed assessment.
    10. Mr Hogan suggests that Mughal v Samuel Higgs & EUI Limited was decided per incuriam. Master Haworth’s attention was not drawn to the relevant rules, or to two important cases decided by the Court of Appeal. The first of these is Mahmood v Penrose [2002] EWCA Civ 457, in which the Court of Appeal found, by reference to what was then section 13.8 of the Costs Practice direction (the predecessor of Practice Direction 47, paragraph 9.7), that a judge who had not conducted the relevant hearing could not carry out a summary assessment of costs.
    11. The second is Thenga v Quinn [2009] EWCA Civ 151, a decision on permission to appeal, in which Wilson LJ (as he then was) observed that an apparent local practice of having summary assessment undertaken by district judges who had not heard the relevant case, was on the face of it irregular (albeit something to which he might turn a blind eye).
    12. Mr Hogan also warns me off from any attempt to use case management powers in an attempt to override the rules and practice directions: the judgment of the Court of Appeal in Bovale Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 171 makes it clear that that is not an option.

THE MASTER’S CONCLUSION

The Master struck out the Notice of Commencement.  CPR 36.20.11 states that where the parties do not agree liability for costs then the court must make an order as to costs. A  simple application under this rule was the appropriate means of resolving a dispute in relation to disbursements.

Conclusions
  1. I bear in mind that under CPR 1.2(b) I have a duty, when interpreting the Civil Procedure Rules, to seek to give effect to the overriding objective, which requires that cases be dealt with justly and at proportionate cost.
  2. I cannot accept Mr Waszak’s submission that non-fixed disbursements are nonetheless to be regarded as “fixed costs”. I am however equally unable to accept the Claimant’s submissions, which seem to me to be based upon the premise that, by virtue of CPR 44.1(1), the word “costs” must always be read to include disbursements. In fact, the rule makes it clear that such is only the case unless the context otherwise requires.
  3. CPR 45 (not just in Section IIIA, but throughout) distinguishes clearly between fixed costs and disbursements and makes separate provision for each. It would follow that where other provisions of the Civil Procedure Rules cross-refer to fixed costs under CPR 45, they do not refer to disbursements.
  4. Even in isolation, the context clearly requires that the words “Except where the recoverable costs are fixed by these Rules…” in CPR 36.13(3) do not require that disbursements must also be fixed. A much more appropriate and workable interpretation, consistent with the overriding objective, is that the wording does not refer to disbursements at all. It simply confirms, as one would expect, that cases in which the recoverable costs are fixed are not subject to the general rule that following acceptance of a Part 36 offer, a claimant’s costs are to be assessed on the standard basis.
  5. As Mr Waszak says, CPR 36.13 and CPR 36.20 between them provide (absent agreement) for two alternative, mutually exclusive methods of determining the amount of costs and disbursements recoverable by a claimant following acceptance of a Part 36 offer. One is detailed assessment on the standard basis under CPR 36.13(3), a potentially expensive procedure quite unsuitable where CPR 45 Section IIIA applies. The alternative, suitable and specifically designed for such cases, is recovery of fixed costs and permitted disbursements under CPR 36.20.
  6. It also seems to me that, where following acceptance of a Part 36 offer, fixed costs are recoverable under CPR 45 Section IIIA, there can be no deemed order for costs under CPR 44.9. CPR 44.9 applies where a right to costs arises under CPR 36.13(1), but CPR 36.13(1) is expressly subject to CPR 36.20. CPR 36.20 provides that a claimant’s entitlement to costs and disbursements, following acceptance of a Part 36 offer, is dictated by Section IIIA of Part 45. That is quite inconsistent with the existence of a deemed order for costs on the standard basis, as is the requirement that any dispute be resolved by an order under CPR 36.20(11). The logical conclusion is that where CPR 36.20 applies, CPR 36.13(1) is disapplied.
  7. As for the procedure to be followed under CPR 36.20(11), although CPR 36.20(12) refers expressly to costs payable to a defendant it is evident from that provision that the court is under CPR 36.20(11) required to make an order which determines the amount of costs due, whether to a claimant or a defendant. That is neither summary assessment nor detailed assessment. It is a different, self-contained procedure. CPR 44.6 (which excludes orders for fixed costs and is subject to “any rule, practice direction or other enactment”) and the provisions of Practice Direction 44, addressing the choice between summary and detailed assessment, have no application. Any issues will be limited, as will the amount in issue. There is no need for a judge who has dealt with the case to deal with the costs dispute: as Mr Hogan says, where settlement has taken place under Part 36, it is unlikely that a judge will have dealt with the case.
  8. I think that Mr Waszak must be right in saying that, given that CPR 36.20 and Section IIIA of CPR 45 between them provide comprehensive, self-contained provisions for the recovery of the costs to which they apply, that an application for an order under CPR 36.20(11) should be treated as an interim application under CPR 45.29H. The application costs awarded on that basis would be modest and proportionate. I see no reason to apply the narrow interpretation of “interim application” urged on me by Mr Hogan. It seems to me that an interim application can be made at any stage before every aspect of a case is finally resolved, including on costs matters.
  9. I would add that the interpretation of the rules contended for by the Claimant is likely to lead to a number of undesirable consequences. I share Master Haworth’s concern about proportionality. The Claimant’s interpretation does not meet that concern, adding as it does a significant layer of potential additional cost, in this case to a dispute over £564.
  10. It has already cost over half the amount in issue just to prepare a bill which includes (as it must, if detailed assessment is the right procedure) the fixed costs which comprise by far the greatest part of the Claimant’s bill and yet are not the subject of any dispute. The Claimant further asserts the right to recover additional costs of provisional assessment up to £1,500 plus VAT, and in principle there would be nothing to stop either party going to a further oral hearing under CPR 47.15(7)-(9) at yet more cost.
  11. Mr Hogan argues that the court has the power to limit the costs of detailed assessment to a proportionate figure, but the point seems to me to be that the entire detailed assessment procedure is disproportionate where costs under Section IIIA of CPR 45 are concerned. It is not an answer to that to say that the parties are obliged to take that route, notwithstanding the risk that the court may have to disallow a large part, if not most, of their costs.
  12. Proportionality is not the only concern. Given that disputes are more likely to arise in relation to non-fixed disbursements than fixed costs, the Claimant’s interpretation of the rules could render CPR 36.20 largely redundant. It could also lead to inconsistency. For example, where all disbursements are fixed (as, for example, under CPR 45.29I, paragraph 2A) any dispute would be resolved under the CPR 36.20 procedure, whereas if even one disbursement, however small, is not fixed and not agreed, the case would have to go to full detailed assessment.
  13. For those reasons, the Defendant’s application succeeds. The Claimant’s Notice of Commencement and bill of costs shall be struck out.
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