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Court of Appeal in Sharp v Leeds CC Decides Fixed Costs 'plainly apply to the costs of a PAD application' in Ex-Protocol Cases - Marcus Coates-Walker, St John's Chambers

03/04/17. In the case of Sharp v Leeds City Council [2017] EWCA Civ 33 the Court of Appeal (COA) determined a “short but important point” in relation to pre-action disclosure (PAD) application costs, which are ordinarily governed by the general rule and exceptions in CPR 46.1(2) and (3).

The Issue: Does the fixed costs regime in Section IIIA of Part 45 for claims which started, but no longer continue, under the EL / PL Protocol apply to the costs of a PAD application under Section 52 of the County Courts Act 1984 in connection with such a claim?

The Facts: Miss Sharp (C) tripped on a footpath and injured her wrist. She brought a claim against Leeds City Council (D) through the Portal under the EL / PL Protocol. The claim ceased to continue within the EL / PL Protocol and thereafter fell within the PI Protocol. D failed to give pre-action disclosure and C made a PAD application. By the time of the hearing at Wakefield County Court, D had given the necessary disclosure, but DJ Heppell awarded C the costs of the PAD application and summarily assessed them at £1,250. On appeal Judge Saffman concluded that the fixed costs regime applied, with the result that payable costs were reduced to £305.

The COA decision: LJ Briggs (with whom LJ Jackson and LJ Irwin agreed) held that the fixed costs regime “plainly applies to the costs of a PAD application” in cases which started, but no longer continue under the Protocol. He stated that the starting point in these cases is to limit the recovery of costs to the fixed rates, subject only to a very small category of clearly stated exceptions. He continued: “To recognise implied exceptions in relation to such claim-related activity and expenditure would be destructive of the clear purpose of the fixed costs regime, which is to pursue the elusive objective of proportionality in the conduct of the small or relatively modest types of claim to which that regime currently applies”.

During what were described as “excellent and well-focussed” submissions, there were four areas of battle...

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