The Civil Procedure Rules (CPR) provide for fixed costs in certain elements of civil proceedings, including Small Claims, Fast Track hearings, ‘Stage 3’ hearings and possession claims. This means that any costs applied for that are not those within the fixed costs regimes are unlikely to be awarded by the Court, unless certain factors apply.
This article will discuss the fixed costs applicable in Small Claims and for claims under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and Low Value Personal Injury (Employers’ Liability and Public Liability).
Costs on the Small Claims track are governed by rule 27.14 of the CPR. Where a case is allocated to the Small Claims track, the Court may not order a party to pay another party’s costs, except:
- The fixed costs attributable to issuing the claim payable under Part 45; which appear in Table 1 under Part 45 and allow for amounts between £50-£110 plus an additional £15 for each additional defendant, dependent on the value of the claim and how the claim form is served.
- In proceedings which include a claim for injunction or an order for specific performance, a sum not exceeding the amount specified in Practice Direction 27 for legal advice and assistance. PD 27, Part 7.2 provides that this sum is not to exceed £260.
- Any Court fees paid by the other party, for example the issue fee and hearing fee.
- Witness expenses, those being expenses which a party or witness has reasonably incurred in travelling to and from the hearing or in staying away from home for the purpose of attending the hearing; plus, an amount for loss of earnings or loss of leave by that person due to attending the hearing. The sum claimed for loss of earnings/loss of leave cannot exceed £95 per day for each person (PD 27, 7.3(1))
- A sum for expert’s fees (where the Court has granted permission for the use of such expert). This sum cannot exceed £750 for each expert (PD 27, 7.3(2))
- Any such further costs as the Court may assess by summary procedure and order to be paid by a party who has behaved unreasonably. It should be noted that a party’s rejection of an offer is not in itself unreasonable behaviour; but the Court may take it into consideration when applying the unreasonableness test (Rule 27.14(3)).
- Stage 1 and Stage 2 fixed costs where the claim was in the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims and the Claimant reasonably believed the claim was valued more than the Small Claims track limit (in accordance with Paragraph 4.1(4) of the relevant protocol) and the Defendant admitted liability in the Protocol process but did not pay those fixed costs. In the event of an appeal, the costs of any approved transcript that was reasonably incurred can also be awarded. Stage 1 and Stage 2 fixed costs are set out in Table 6 of Part 45 and are dependent on the protocol and value of the claim.
Commonly in Small Claims hearings, it will only be the fixed commencement costs, the hearing fee, the issue fee and any witness expenses that are awarded; however, the other provisions should be taken note of and will apply in some cases.
Where a claim is allocated to the Small Claims track and then subsequently reallocated to another track, the costs set out above will cease to apply after the claim has been re-allocated and the cost rules for Fast Track or Multi-Track cases (dependant on the allocated track) will apply from the date of re-allocation (Rule 27.15).
Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and Low Value Personal Injury (Employers’ Liability and Public Liability) Claims
For cases that continue under the above protocols, the only costs that are allowed are the fixed costs in Rule 45.18, disbursements in accordance with Rule 45.19 and, where applicable, fixed costs in accordance with Rule 45.23A or 45.23B (Rule 45.17). Table 6 within Part 45 sets out the fixed costs in relation to the RTA protocol for each stage of proceedings and dependant on the value of the claim. Table 6A sets out the same in relation to employers’ liability and public liability claims. Within the tables, extra costs are provided for where the Claimant is a child and an advice is needed on the amount of damages; these costs come under Stage 3, Type C fixed costs.
The disbursements which can be awarded are set out in Rule 45.19 and include the costs of obtaining medical records, Court fees, costs of obtaining medical reports, etc. In respect of medical reports, fixed costs apply to certain types of reports in soft tissue injury claims to which the RTA protocol applies:
- The cost of obtaining the first report from an accredited medical expert selected via the MedCo Portal is limited to £180 (Rule 45.19(2A)(a))
- And the costs of obtaining further reports, where justified by an expert, from one of the following disciplines are limited to:
- Consultant orthopaedic surgeon (inclusive of a review of medical records) – £420 (Rule 45.19(2A)(b)(i))
- Consultant in accident and emergency medicine – £360 (Rule 45.19(2A)(b)(ii))
- General practitioner registered with the General Medical Council – £180 (Rule 45.19(2A)(b)(iii))
- Physiotherapist registered with the Health and Care Professions Council – £180 (Rule 45.19(2A)(b)(iv))
- The cost of an expert not listed above is not fixed but the use of that expert and the cost must be justified (Rule 45.19 (2C))
Further, the cost of obtaining medical records is limited to no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total for each set of records required (Rule 45.19 (2A)(c)). Addendum reports (except those by Consultant Orthopaedic Surgeons) are limited to £50 and answers to questions under Part 35 are limited to £80. It should be noted that the fixed costs of obtaining medical reports or medical records are exclusive of VAT and VAT may be recovered in addition, where appropriate (Rule 45.19(2D)).
Costs to be awarded can be altered where a party’s relevant protocol offer is beaten and consideration would need to be given to the offers and the relevant rules (under Part 45 and Part 36) to ensure whether fixed costs are to be awarded or whether another cost regime applies.
Where claims start under the relevant protocols but do not continue under that protocol or the Stage 3 procedure, the costs are set out in Table 6B (Part 45) for the RTA Protocol, Table 6C for employers’ liability claims and Table 6D for public liability claims. These costs change dependant on whether the claim settles, at what stage and the amount of damages agreed or awarded. The tables also provide for trial advocacy fees should the claim be disposed of at trial, under section D of each table. These fees, again, depend on the amount of damages agreed or awarded. The disbursements that can be awarded are set out under Rule 45.29I.
Fixed costs are designed to ensure that the costs of litigation are kept to a reasonable amount in relation to the claim. This article only considered two types of fixed costs that can be awarded and there are other costs regimes within the CPR dependant on the type of claim and the track allocated. It is worth considering costs at an early stage of any proceedings to ensure that the costs that are applied for and awarded in line with the applicable rules.
Specialist advice on civil proceedings can be obtained from members of Becket Chambers – contact the Clerks for further information.