A deputy district judge’s decision to vary a consent order for costs on the standard basis to apply fixed costs to a claim that started in the portal has been overturned.
His Honour Judge Wulwik in Central London County Court said there was no reason to interfere with the agreement between the parties.
Adelekun v Ho was a claim arising from a road traffic accident in 2012. The claim was commenced 18 months later in the portal, but exited a few weeks after in the absence of an admission of liability. Proceedings were issued in December 2014.
In January 2017, the claimant issued an application to reallocate the claim to the multi-track, but five days before the hearing, the defendant made a £30,000 part 36 offer gross of recoverable benefits.
The following day, the defendant’s solicitors also indicated to the claimant’s solicitors that they could consent to the matter being multi-tracked. A day later, the claimant accepted the part 36 offer.
The Tomlin order provided that the defendant would pay the reasonable costs of the claimant on the standard basis.
However, with the claimant seeking costs of nearly £43,000, the parties were subsequently unable to agree whether or not the fixed-costs regime applied.
Deputy District Judge Harvey found that it did, but said it was open to the claimant to argue on detailed assessment that she should recover costs in excess of fixed costs due to exceptional circumstances.
On appeal, the claimant argued that the DDJ had no power to vary the consent order containing the parties’ contractual agreement.
HHJ Wulwik upheld the appeal. By the time the consent order was signed, he noted, the defendant had agreed to the case being reallocated to the multi-track.
“The costs order that was agreed by the parties… was entirely consistent with the parties’ agreement that the claim should be reallocated to the multi-track.
“It would have been sensible if the claimant’s solicitors had included as a term of the consent order that the claim be reallocated to the multi-track, but I can see no reason in principle why the court should not give effect to the parties’ agreement that the defendant is to pay the reasonable costs of the claimant on the standard basis.”
As a result, HHJ Wulwik ruled, there was no basis for the DDJ varying the consent order.
London firm Bolt Burdon Kemp acted for the claimant. Head of costs Sam Hayman said: “This decision demonstrates true pragmatism and justice to the specific facts of this case.
“That said, it also contains some principles of wider application as regards the threshold to evidence a contracting out.
“The defendant/respondent is seeking permission for a second appeal from the Court of Appeal.
“Fixed costs has proved fertile ground for the Court of Appeal of late and it is hoped that, whether or not permission is granted, some definitive further guidance can be given on this highly contentious issue.”