Applications for Pre-Action Disclosure fixed costs decision

Applications for Pre-Action Disclosure in portal claims still subject to fixed costs even where it has fallen out of the portal.

The Court of Appeal held that fixed costs apply to applications for pre-action disclosure in cases which start off within the personal injury portals even where it has fallen out by the time of the application.

The case concerned a tripping claim that was started under the EL/PL portal. The case fell out of the portal at an early stage and the claimant was forced to make a pre-action disclosure application as the defendant had failed to comply with the disclosure requirements of the protocol.

At first instance, the defendant was ordered to pay the claimant’s costs of the application. However, on appeal, HHJ Saffman considered the PAD disclosure to be an interim application within the meaning of part 45.29H and therefore subject to fixed costs.

The Court of Appeal, perhaps reluctantly, agreed that fixed costs regime must apply in such a situation. The purpose of the personal injury portals was to ensure that costs were proportionate within the relatively modest claims that started within the portal, whether they remained in it or not. The fixed costs regime was subject only to limited exceptions and to recognise further exceptions would undermine its purpose.

Whilst the PAD application was separate from the claim to which it related it was closely connected. Furthermore, it was an interim application as it followed the commencement of the claim within the portal. It therefore fell within the fixed costs provision of 45.29H for interim applications. To find otherwise would result in unwelcome satellite litigation.

However, Briggs LJ recognised that there was real force in the argument that limiting such applications to fixed costs deprived the applications of their value in encouraging compliance with protocol disclosure obligations and that fixed costs would refund only part of the likely outlay incurred. He said:

“There would be nothing to prevent recalcitrant defendants from simply failing in their disclosure obligations, waiting to see if the claimant was prepared to incur the uneconomic expense of a PAD application, and then simply complying with any order made by doing precisely that which, under the protocols, the defendant ought to have done in the first place.”

However, the resolution was not to be found in treating PAD as falling outside of the fixed costs regime but instead claimants should seek higher costs under the ‘exceptional circumstances’ rule in part 45.29J. Although he recognised that this may be a high hurdle to surmount.

Another answer might be to obtain recognition by the Rule Committee that the fixed costs regime needed to be kept under review and defects in it remedied by adjustment of the fixed allowances where that could be shown to be justified.

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