Fixed costs when the claimant dies, which section of CPR 45 applies?

The Court of Appeal has delivered an important ruling in the case of West v Burton [2021] WLR(D)379], on which provisions of CPR 45 apply where the claimant dies throughout the course of a matter in which the fixed costs regime applies. The issue in dispute between the parties was whether it was the lesser provisions, in monetary value, of section III, or the more favourable in this instance, provisions of section II.

Both at first instance and at the initial appeal it had been decided that it was the provisions of section II of CPR 45 which ought to apply, as was argued on by the claimant. The reasoning being that claims brought by personal representatives were excluded from the protocol.

The unanimous decision was delivered by Sir Nigel Davis, who confirmed he had not found the decision altogether easy. It was said that “for the purposes of the Protocol, the claimant throughout is regarded as the person who was involved in the road traffic accident.”

“Furthermore, r.45.29A and r.45.29B are in terms confined to claims started under the Protocol. I consider, accepting the submissions of Mr Williams, that in this case the claim that was settled was that of Mr West. But Mr West was not himself the person who started the claim, within the meaning of the Protocol. Indeed, as executor he never could have started such a claim, given the provisions of paragraph 4.5(3) of the Protocol. Consequently, this was not a claim, for the purposes of assessing costs, within the ambit of CPR r.45.29A or r. 45.29B. Accordingly, costs fall to be assessed by reference to section II.”

“It further follows that I agree with the judge that the outcome would have been the same even had the claim not exited the portal. The provisions of section III would not have come into play; and this would still have remained a section II case.”

Thus, the earlier decisions were upheld and a more favourable costs award made. It will be interesting to see if the rules committee now sets out the position in express terms, as alluded to by Sir Nigel in his conclusions. The decision will however lead to more advantageous awards not only in low value RTA claims, but in low value EL/PL cases also, to which the same provisions apply.

This article was featured in our July 2021 newsletter, see the full newsletter here.

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