District Judge Field, sitting in the County Court at Truro, has delivered perhaps the most interesting and seminal judgment of the new fixed costs era.

In MIL Collections Limited v My Shop 4 Ltd & Ors [2025] EWCC 38 (04 July 2025), the Court was asked to consider whether each of the 13 Defendants were entitled to fixed costs where the Claimant’s case was struck out for non-compliance with an Unless Order. The quantum of those costs was also considered, given events which meant determination of the award was not straightforward.

Case Facts

The Claimant was a company, whose business involved the purchase and recovery of debts. In late 2024, they had taken an assignment of debts owing by commercial entities to E.on Next Energy Ltd (‘Eon’). The debts varied in size.

Multiple claims were issued, which were transferred, piecemeal, to the County Court at Truro. In each case the Claimant had served a short template Particulars of Claim, and in many instances similar issues were being raised in Defence.. In the interests of the overriding objective, the decision was taken by the Court to manage the cases together, with the case allocated to the Fast Track and assigned to Band 1.

It later became apparent that multiple Defendants were co-ordinating their approach to the litigation and an identical Defence was being filed by each of them. All 13 Defendants in this case, had adopted this approach and thus an order was made on 28 April 2025 consolidating each of their cases and providing a tight timetable to trial.

Directions were subsequently given in several cases, which amongst other things, required the Claimant to file better Particulars of Claim, within 14 days of the order. In this case, this was to be by 13 May 2025, something the Claimant did adhere to. However, the Court took the preliminary view that the pleadings were still deficient and that unless order had not been complied with.

A hearing was listed to take place on 21 May 2025, to consider whether the claim had been or should be struck out. In the intervening period, the court sent out a notice dated 19 May 2025, listing a two day trial to take place across 14 and 15 July 2025. This is one of the first notes of interest in this case, on the basis that traditionally, as per the factors considered for allocation, matters will not usually be allocated to the Fast Track when the trial is expected to last no longer than one day. Here the Court exercised the discretion available to it pursuant to CPR PD 26 16.3(c), to still determine the case was not suitable for the Intermediate or Multi Track.

Until 19 May 2025, the Defendants had all been Litigants in Person, however, the 12^th and 13^th Defendants sought representation shortly before the final hearing. At the hearing on 21 May 2025, the Claimant accepted that there had been a breach of the unless order and that, consequently, the claim had been automatically struck out on 13 May 2025. The Claimant made an application for relief from sanction on the evening of 20 May 2025. Most of the hearing on 21 May 2025 was therefore concerned with the application for relief, which was dismissed.

The Parties’ Positions

At the conclusion of the hearing, the 12^th and 13^th Defendants sought their costs of the hearing pursuant to CPR 45.8 in accordance with Table 1 of PD45. These were determined at the hearing on 21 May.

With regards to the substantive litigation, the 12th and 13th Defendants sought fixed costs pursuant to CPR 45.44 and Table 12 of PD45 following the strike out of the claim; and the 1st to 11th Defendants each sought two thirds of the fixed costs in Table 12, pursuant to CPR 45(2)(a).

Due to a shortage of time, written submissions were ordered on the issues in relation to costs which were:

1. The extent to which the fixed costs provisions apply at all in relation to a claim which is struck out;
2. The applicable amount of fixed costs and the appropriate stage in Table 12 of Practice Direction 45
3. Whether, where there is more than one defendant, each defendant is entitled to recover fixed costs in their own respect.
4. Any entitlement to fixed costs in respect of unrepresented parties.

A.) The extent to which the fixed costs provisions apply at all in relation to a claim which is struck out

There was no dispute between the parties in relation to the allocation or assignment of the matter, which is traditionally a battleground on the new fixed costs regime. The Claimant here did dispute however, that there was an entitlement to costs by the Defendants, based on the specific wording in Table 12 of PD 45, which stipulates costs are payable where a claim “settles or discontinues“. There are also provisions for costs where the matter is disposed of at trial, which did not apply here. It was asserted that none of these conditions had been triggered and therefore no costs should be awarded. It was suggested by the Claimant that any liability should extend only as far as the interim application costs outlined in Table 1 of PD 45.

The Defendants’ position was that the triggers in terms of when an award for costs can be made, was non-exhaustive in Table 12 and that it would be an “absurdity” if a party whose case is struck out would escape liability for costs which would have flowed from, for instance, a discontinuance.

The Court dismissed the Claimant’s approach, confirming that the Table 12(B) did not contain an exhaustive list of the circumstances in which it applied. The Court went further, confirming that “those drafting the rules have clearly gone to extensive efforts to ensure that the fixed costs rules and Practice Direction address most circumstances and permutations, it cannot have been expected or intended that they would expressly deal with every possible circumstance which might arise in such a wide range of cases. The rules must be construed widely and purposefully.”

The Defendants were therefore entitled to costs of the action on accordance with Table 12.

B.) The applicable amount of fixed costs and the appropriate stage in Table 12 of Practice Direction 45

Given the listing of the trial in the intervening period between the deemed automatic strike out and the hearing on 21 May 2025, there was a dispute as to which was the applicable stage in Table 12 of PD 45. This was namely whether the matter fell into stage 2 which applies to case ‘from allocation up to listing for trial’; or stage 3, which applies to case ‘after listing but before the trial.’

The 12^th and 13^th Defendant’s drew  a distinction between the “listing” of a trial and the “fixing” of a trial. They submitted that stage 3 costs should apply, on the basis that case are traditionally listed in a floating window, with a fixed start date listed afterwards. Reference was made to guidance in the Chancery guide.

The Court found difficulties in accepting this approach, given that in the vast majority of Fast Track cases, the first case management order will provide for both allocation and provision for the trial to be listed either within a window or on the first available date after a particular date.

It was therefore determined that stage 2 costs applied.

C.) Whether, where there is more than one defendant, each defendant is entitled to recover fixed costs in their own respect.

The arguments here arose because of the ambiguity in CPR 45 regarding the position. Where there are multiple Claimants, the position is much clearer and the rules provide for the recovery of 25% of costs where additional Claimants are represented by the same firm of Solicitors.

After deliberation of several factors, including the position on cases allocated to the Multi Track, whereby Defendants are each entitled to their own costs, and the fact that had the  rule makers intended to deviate substantially from principles which would ordinarily apply in respect of costs, this would have been dealt with expressly in the rules, the Court determined that each Defendant was entitled to their fixed costs as set out in Table 12 of PD45. This was subject to the Court’s discretion to make an order under CPR 44.2(6)(a) that a party pay only a proportion of another party’s costs. The Court did not believe the fact that an award of two sets of fixed costs might produce a windfall for the Defendants was a relevant circumstance which should carry significant weight.

D.) Any entitlement to fixed costs in respect of unrepresented parties

Having determined that the individual Defendants were entitled to costs of the claim, the final issue to be determined by the Court was the position regarding the Defendants’ status as Litigants in Person and the level of entitlement.

CPR 45.4 deals with the position in relation to recoverable costs of Litigants in Person on the fixed costs regime, and confirms the application of CPR 46.5, which in turn confirms that Litigants in person are entitled to the same categories of costs and disbursements as represented parties, payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and the costs of obtaining expert assistance in assessing the costs claim. Where a party is a litigant in person throughout the entire claim, the costs allowed under this rule shall not exceed, except in the case of a disbursement. The amount to be claimed will be done so where the litigant can prove financial loss and is calculated at a rate of £19 p/h.

In the case of the 12th and 13th Defendants, the Court determined swiftly that, although they were acting as litigants in person as at the date of strike out, witness statement evidence of their representatives confirmed that prior to that, they had been acting for the Defendants by assisting in the drafting of the Defendant and working on an Amended Defence to the Amended Particulars of Claim.

The costs claimed by them were therefore deemed reasonable costs for legal services related to the conduct of the litigation and are therefore allowed under CPR 46.5(3)(b), subject to the two thirds cap referenced above.

The position in relation to the remaining Defendants was less clear. There was nothing to suggest that they were liable to representatives for fees and there was no evidence of financial losses. Invitations were made by those Defendants, for an award in line with that made in favour of the 12^th and 13^th Defendants.

However, the Court had difficulty in finding that the remaining Defendants had spent 91 hours engaging with the litigation, which was the number of hours that would have been required at the rate of £19 p/h to reach the level of costs awarded to the represented 12^th and 13^th Defendants. 7 hours was deemed reasonable and awarded to the 1^st to 11^th Defendants.

The Defendants sought an uplift of 50% on their costs in accordance with CPR 45.13 because of the Claimant’s conduct in the manner in which they pursued the claims.  The Court again refused this on the basis that the Claimant had already been penalised through the striking out of the claim and there was no evidence to support how the costs had been increased as a result of the Claimant’s conduct.

Summary

The decision is well thought out and provides useful guidance on numerous issues under the new extended fixed costs regime. It further exemplifies the Court’s discretion in terms of allocation and assignment of cases that may well have landed themselves on another track in view of the trial length and combined value. Further, the closing comments confirm a burden on receiving party’s to provide evidence in support of claims for additional sums pursuant to CPR 45.13 because of alleged poor conduct.

In conclusion, where a Claimant’s case is struck out against multiple defendants, each Defendant is entitled to recover their costs on an individual basis. It is essential that a specific trial date has been set, prior to the claim concluding to engage the fixed costs regime under stage 3 of Table 12 CPR PD 45, even if the trial itself does not take place. Furthermore, litigants in person are entitled to recover upto two-thirds of the costs awarded to legally represented parties, ensuring fair but proportionate remuneration for their time and effort in defending the claim. But this must be evidenced.

 Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our dedicated fixed costs email address at FRC@clarionsolicitors.com.