Parties Can Contract Out of the Fixed Costs Regime: A Reminder for Caution when Drafting Consent Orders: Doyle M&D Foundations & Building Services Ltd [2022] EWCA Civ 927 - Grace Corby, Temple Garden Chambers

20/09/22. A claim for damages for personal injuries had settled for £5,000 by a consent order (“the Order”). The Order provided that the Defendant would pay the Claimant “such costs to be the subject of detailed assessment if not agreed”. Following the agreement, the Claimant had filed a bill of costs for detailed assessment on the standard basis. The Defendant disputed this approach, arguing that the case fell within the fixed recoverable costs regime under Section IIIA of CPR Part 45. At first instance the district judge ruled that the parties had contracted out of the fixed cost regime using the Order and assessed the costs at £14,467.44. The appeal concerned the interpretation of that provision, in particular, whether the fixed costs regime under CPR Part 45 applied.

The Decision

Philips LJ delivered the judgment of the court. He stated that it had been recognised previously that there is no bar to parties contracting out of the fixed costs regime: see Solomon v Cromwell Group plc [2011] EWCA Civ 1584.

The court noted that the words of the Order are to be given “their natural and ordinary meaning and are to be construed in their context”: see paragraph 25. In this situation, where the order was a consent order, the real question was the true interpretation of the parties’ agreement: paragraph 27.

The Defendant relied on the fact that in Ho v Adelekun [2019] Costs LR 1963, the Court of Appeal had held that an identical phrase used in a Part 36 offer referred to fixed costs, not conventional costs. Further, the Defendant argued that it was inherently improbable that the they would have agreed to pay standard basis costs when the fixed costs regime was likely to be much more favourable to the paying party. The necessary and inevitable conclusion, the Defendant argued, was that it had not been intended to contract out of the fixed costs regime.

Phillips LJ rejected these arguments at paragraph 44, stating that there “there is no ambiguity whatsoever as to the natural and ordinary meaning of “subject to detailed assessment” in an agreement or order as to costs.” Further, at paragraph 51 he continued that there was...

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State Immunity and Personal Injury in the High Court: Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB) - Sebastian Bates, Temple Garden Chambers

16/09/22. Under section 1(1) of the State Immunity Act 1978, ‘[a] State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions’. In Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB), the High Court considered the exception set out in section 5 of the Act, according to which ‘[a] State is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom’.

Summary

The Claimant in Al-Masarir is a critic of the Kingdom of Saudi Arabia who alleges that spyware was installed on his smartphones by the Kingdom’s agents. He was also followed and attacked in London in an episode for which he claims the Kingdom is responsible. He and his smartphones were present in the United Kingdom at all material times. He is seeking damages for personal injury.

The Claimant relied on section 5 to obtain permission to serve the claim form outside the jurisdiction from the Master. The Kingdom sought a declaration of its immunity under the Act and to have the Master’s order set aside.

Before Julian Knowles J, the Claimant contended that section 5 applies to both sovereign and non-sovereign conduct and does not require that all of a...

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Striking out claims in evolving areas of the law: HXA v Surrey CC [2022] EWCA Civ 1196 - Anisa Kassamali, Temple Garden Chambers

15/09/22. The Court of Appeal considered the circumstances in which local authorities owe a duty of care to children to whom they provide child protection services. In so doing, it commented upon the proper exercise of a Court’s power to strike out a claim pursuant to CPR 3.4.

Background

The two appellants had separately been subjected to abuse and neglect as children. They each brought proceedings in negligence against their local authorities. They both claimed that the local authorities had assumed responsibility for their welfare and so owed them a common law duty of care.

The claims were struck out on the basis that, on the facts of each case, the local authorities could not be said to have assumed responsibility and so it was not arguable that they owed the appellants a duty of care. The decisions to strike out the claims were appealed to the High Court, where they were upheld by Stacey J. However, the Court of Appeal allowed the appellants’ appeal, concluding that it had been “plainly wrong” [105] to strike out the claims.

Court of Appeal decision

Much of Baker LJ’s judgment was concerned with the circumstances in which a local authority owes a duty of care to a child to whom it provides child protection services. He considered that this was a question which could only be answered definitively “on a case by case basis by reference to the specific facts of each case” [92] and that such a duty might arise in both of the appellants’ circumstances.

However, the Court of Appeal was not being asked to decide whether the appellants would ultimately succeed in establishing that the local authorities owed them a duty of care. Baker J cited Lord Reed’s observation in the Supreme Court decision of N v Poole Borough Council (AIRE Centre and others intervening) [2019] UKSC 25 that “the existence of an assumption of responsibility can be highly dependent on the facts of a particular case” and “where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application” [99].

In reaching its decision, Baker LJ emphasised the uncertainty generated by the fact that the case law was still evolving in this area. He observed at [105]-[106]:

“105. To sum up, this is still an evolving area of the law in which it will only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it will become clear where precisely the line is to be drawn between those cases where there has been an assumption of responsibility and those where there has not…

106. In due course, as a body of case law emerges, it will become easier at the outset of proceedings to identify the circumstances in which an assumption of responsibility can exist so as to give rise to a duty of care. At that point, there will be greater scope for striking out claims which on any view full (sic) short of establishing a common law duty of care. But at this relatively early stage in the development of the law after the Poole case, striking out these claims would in my view be a wrong use of the power under CPR 3.4.”

Concluding comments

The Court of Appeal’s decision emphasises the high threshold required before a Court will strike out a claim. This is particularly so where the claim relates to evolving areas of the law where the fundamental principles are not yet fully established.

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