The rules below apply to all fixed costs proceedings where the cause of action (injury) pre-dates 1 October 2023. The old CPR rules can be found here. 

CPR 36.20 and CPR 45

CPR 36.20 was introduced under the same statutory instrument (SI 2013/1695) that brought about CPR 45 Section IIIA.

The provisions of CPR 45 Section IIIA sets out the fixed costs that apply to claims which no longer continue under the Road Traffic Accident Protocol (RTA Protocol) or the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (EL/PL Protocol).

Under CPR 45.29B

“Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

(a) the fixed costs in rule 45.29C;

(b) disbursements in accordance with rule 45.29I.”

The fixed costs under CPR 45 Section IIIA are set out on the fixed costs table 6B. The level of costs awarded depends on the stage at which the claim is settled and the amount of damages awarded or agreed.

45.29J deals with claims for costs that exceed the fixed costs regime. Costs under CPR 45.29J will be awarded:

“(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

(2) If the court considers such a claim to be appropriate, it may—

(a) summarily assess the costs; or

(b) make an order for the costs to be subject to detailed assessment.

(3) If the court does not consider the claim to be appropriate, it will make an order—

(a) if the claim is made by the claimant, for the fixed recoverable costs; or

(b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

and any permitted disbursements only.”

CPR 36.20 differs significantly from CPR 36.13, which outlines how a claimant’s costs are determined (when a Part 36 offer is accepted within the applicable timeframe) in cases not covered by Section IIIA of Part 45 of the Civil Procedure Rules.

Under CPR 36.13(3), when recoverable costs are not predetermined, they will undergo a standard assessment if not agreed upon. Conversely, CPR 36.20 outlines an alternative procedure for cases where recoverable costs are predetermined.

CPR 36.20

Part 36.20 of the Civil Procedure Rules relates to personal injury claims that are no longer proceeding under the RTA or EL/PL protocols. It outlines the cost implications of accepting a Part 36 offer in cases where Section IIIA of Part 45 is applicable.

In accordance with this rule, if a claimant agrees to a defendant’s Part 36 offer within the specified timeframe, the claimant is eligible for the fixed costs outlined in Table 6B, Table 6C, or Table 6D within Section IIIA of Part 45.

These fixed costs apply to the stage at which the Notice of Acceptance is sent the offeror. Should the Claimant accept the offer after the stipulated timeframe, they will be entitled to the fixed costs corresponding to the stage at the expiration of the relevant period, unless the court decides otherwise.

Furthermore, the rules state that a claimant will be entitled to interest on fixed costs if they obtain a judgment which is equally or more advantageous to their own Part 36 offer. The interest rate should not exceed 10% above the base rate and may apply for a portion or the entirety of the period starting from the conclusion of the relevant period.

CPR 36.20 (11) Fixed Costs Assessments

Fixed costs assessments under Part 36.20 (11) are a method used for resolving costs disputes that exceed the amount of costs and disbursements that are recoverable by a Claimant or a Defendant following the acceptance of a part 36 offer in personal injury claims that are subject to the fixed recoverable cost rules under CPR 45 section IIIA.

An example of the use of an assessment of costs in accordance with CPR 36.20(11) can be found in the case of Nema v Kirkland.

“where following acceptance of a Part 36 offer, fixed costs are recoverable under CPR 45 Section IIIA, there can be no deemed order for costs under CPR 44.9. CPR 44.9 applies where a right to costs arises under CPR 36.13(1), but CPR 36.13(1) is expressly subject to CPR 36.20. CPR 36.20 provides that a claimant’s entitlement to costs and disbursements, following acceptance of a Part 36 offer, is dictated by Section IIIA of Part 45. That is quite inconsistent with the existence of a deemed order for costs on the standard basis, as is the requirement that any dispute be resolved by an order under CPR 36.20(11). The logical conclusion is that where CPR 36.20 applies, CPR 36.13(1) is disapplied.”

Under part 36.20(11), the Court must consider the evidence and arguments of both sides and make an Order to determine the level of costs payable.

Guidance on what should be included in an application under CPR 36.20(11) can be found in the case of Ivanov v Lubbe, CC (Central London; 17 January 2020). The Judge in this case stated the following:

“Applications should comprise two paragraphs, the first seeking a costs order and the second asking for costs to be assessed in accordance with the sum sought. Ideally, the application should exhibit a Form N260 (statement of costs) or at least the disbursements page.”

Can ARC Costs Assist?

ARC Costs are a team of expert Costs Draftsman and Costs Lawyers who regularly act as independent costs experts, for either paying or receiving parties.

Our team is highly experienced in dealing with fixed costs disputes and CPR 36.20 (11) applications . We are always happy to help with fixed costs challenges. For more information on legal costs, please find out more about our speciality areas of expertise, and our services, such as preparing Bills of Costs and Costs Budgets.

Should you wish ARC Costs to assist you in a costs matter, or if you just have a query, you may contact us on 01204 397302 or email one of our experts at info@arccosts.co.uk

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