Judge awards two sets of fixed costs for claimants in same accident
Winn Solicitors report a further victory on fixed costs under part 45 and the application of these costs where there is more than one claimant.
Newcastle based firm Winn Solicitors achieved a significant result on the operation of part 45 fixed costs, confirming that where there is more than one claimant on one set of proceedings, each claimant is entitled to fixed costs under part 45.
The cases involved two claimant passengers in the same road traffic accident claim. Both claims commenced in the portal.
The cases were removed form the portal due to the defendants’ non-compliance with time limits by not responding to the Claims Notification Form. Quantum was not agreed as allegations regarding occupancy were raised by the defendant insurers and one claim was issued under part 7 and eventually the second claim was joined to this set of proceedings.
The claims went to a trial on 19th October 2015 and the claimants succeeded, with the issue of costs being adjourned.
The cases then proceeded to a final costs hearing on 1st February 2016 to resolve the dispute between the claimant and defendant solicitors, to determine the claimants entitlement to costs in the above cases.
The claimants submitted that they were each entitled to recover fixed recoverable costs pursuant to CPR 45 in a matter where they were both on the same set of proceedings. The argument brought by DWF Solicitors on behalf of the defendant was that the claimants were only entitled to recover one set of fixed costs for both claimants.
The defendant relied upon CPR 45.29B and the use of the word ‘claim’ and stated that where there is one claim form and one court number there will only be one set of costs payable.
The defendant submitted that table 6B made no mention of there being two payments for two claimants. The defendant did accept that pre issue the costs calculation was based on each claimant, however, submitted that post issue the table referred to ‘case’ and ‘claim’ and on that basis only one set of fixed costs were payable.
The defendant contended that it was not the intention of the rules committee to propose that solicitors who represent two claimants should be able to recover two sets of fixed costs.
The defendant submitted that this would remunerate solicitors twice for the work where savings were being made e.g. claimant solicitors were not drafting two sets of pleadings.
The defendant submitted that the additional work carried out by the claimant’s solicitor in managing two claimants is minimal and this is accounted for by the 20% taking into account both sets of damages.
The defendant referred to the pre action protocol for low value personal injury claims and CPR 45 PD 2.7, which allowed for costs to be recovered per claimant.
The defendant contended that there was no such provision for claims which exit the portal and therefore it must have been the intention of the rules committee to limit fixed costs claimed for one claim notwithstanding the number of claimants.
The claimant submitted that fixed costs were payable for each claimant and that table 6B under part 45 clearly envisaged an award for each claimant.
The claimant stated that each claim could conclude during a different period and table 6B would specify a different award of fixed costs for each. The claimant stated that the very structure of table 6B suggested that each claim must be considered separately.
The claimant relied upon the following:-
- CPR 7.3 which confirms that a single claim form may include more than one ‘claim’, so that term did not have the all-encompassing meaning that the defendant was suggesting.
- The only mention of ‘claimant’ in table 6B is in the title to section A, which refers to ‘the claimant’ rather than using the plural.
- An uplift of 12.5% applies where the claimant lives or works in London, indicating that table 6B must be setting the costs for a specific individual.
- VAT is applicable to fixed costs where appropriate, the entitlement to which varies among claimants which again suggests that separate costs awards must be made.
- CPR 45.29I(2A) permits in the first instance the recovery of the costs of a single medical report, clearly indicating that claimants are being considered separately in section IIIA for the purpose of costs.
- CPR 36.21 sets out the costs consequences where a claimant beats their own Part 36 offer – consequences which would be nonsensical if multiple claimants shared a single costs award.
The claimant submitted that interpreting the table in this way was consistent with the ‘overriding objective’, as it would be unjust for a claimant to receive a reduced contribution towards their costs simply because there were multiple injured parties – who may be unrelated and who may also be instructing different solicitors.
The claimant further submitted that CPR 45 PD 2.7 expressly provides that each claimant is entitled to a separate fixed costs award when proceedings settle pre issue outside of the portal, so it would be unjust to interpret table 6B as meaning the costs award is less if proceedings are progressed further.
The matter was heard before District Judge Hardy in the County Court at Sunderland on 1st February 2016. DJ Hardy stated the following:-
“…I think, in fact, my reading of the position, standing back from the particular argument in this case, is that it would be a disincentive to solicitors to accept instructions from more than one potential claimant arising from the cause of action if the defendant’s general argument is correct and I say that having in mind Mr Thornsby’s point about the 20% uplift.
“I also repeat the point I placed on a devil’s advocate basis to Mr Thornsby, which is that on the basis that it is a disincentive to accept instructions from more than one claimant, the obvious conclusion would be that more proceedings would have to be issued if the solicitors were attempting to maximise their costs and I use that word ‘maximise’ in a legitimate sense – I am not suggesting they are trying to play the system in any way – but that would lead to additional disbursements being incurred by way of additional court fees.’
“As there is this 20% uplift, I can envisage several scenarios whereby one claimant is, for example, more badly injured than the other and a lot of work has to be done leading to difficulties within the solicitor’s fee earning in terms of the fixed costs regime.
“So, ultimately, I accept the submissions made by Mr Adams on behalf of the claimant within his written document which has been expanded upon by Mr Chelmick.”
District Judge Hardy found in favour of the Claimants and said that the claimant solicitor is entitled to recover two sets of fixed costs within the proceedings.
The Impact for Claimant Solicitors
This case is of significant importance to claimant solicitors given the implementation of the fixed costs regime in 2013 and clearly confirms what the costs entitlement is when there is more than one claimant on one set of proceedings.
As a result of the Judgment, where there is more than one claimant on one set of proceedings, each claimant will be entitled to their fixed costs under table 6B.
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