Understanding EL PL Fixed Costs
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What are EL PL Fixed Costs?
Low-value (<£25,000 in value) Employers Liability and Public Liability claims will need to be submitted to the EL/PL Portal. If a settlement is reached within the Portal, and without the need for proceedings to be commenced (save for Stage 3, limitation or approval needs), it will give rise to EL PL Fixed Costs.
The following cases will fall under the Pre Action Protocol/EL PL Protocol:
- Cases arising from accidents or Letters of Claim submitted after 31 July 2013 as this was when the fixed costs regime was introduced;
- Personal injury claims, including employers liability, public liability and occupiers liability;
- The claim value is less than £25,000
There are up to three stages in the process within the Portal, and the level of EL PL fixed costs which apply will vary based on the stage of settlement.
Fixed Recoverable Costs are governed by Part 45 of the Civil Procedure Rules. Following the introduction of LASPO 2012, CPR 45 was amended to include tables which reference the amount of EL PL Fixed Costs which are recoverable in different instances.
If the Claim Settles Within the EL PL Protocol
Table 6A relates to EL PL Fixed Costs where a case settles within the Portal (under the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability Claims)). The amount of EL PL Fixed Costs which will be recoverable is based on the value of the damages being above or below £10,000 in value, and the stage of the Protocol where the claim settles (with Stage 3 allowing for additional costs to be recovered).
If the Claim Falls Out of the EL PL Protocol
It sometimes is the case that the claim will fall out of the Portal/Protocol. A common reason for this is that liability is disputed and thus further investigations are required, not allowing the matter to proceed with the Portal time limits set.
In this instance, the Pre-Action Protocol for Personal Injury Claims applies (unless liability has been denied), until such point as proceedings are issued.
Once the matter falls from the Portal, Tables 6C and 6D apply which set out the amount of EL PL Fixed Costs which will be recoverable. The amount of costs which are recoverable will vary on not only the amount of damages recovered but also whether the case settles pre-issue, after issue, after allocation, or after listing for Trial (listing for a disposal hearing also constitutes listing for Trial). Set EL PL Fixed Costs apply to Counsel brief fees for cases which are disposed of at Trial.
Table 6C relates to claims which proceed outside of the Portal and are Employer’s Liability Claims, and Table 6D relates to those claims which proceed outside of the Portal but are claims for Public Liability.
It should be noted that any disease claim will not follow the fixed costs regime should they proceed outside of the Portal, even if they were initially submitted within the Portal. This is stated in CPR 45.29A(2).
Further exclusions for fixed costs apply if the case is subsequently allocated to the Multi-Track, which provides for standard basis (hourly rates) costs to be recovered.
It should also be noted that in the EL PL Fixed Costs regime, if an order is made in favour of the Defendant, then the same level of fixed costs will be taken into account when ordering costs to the Defendant as per CPR 45.29F. The difference in any stages of fixed costs will also be factored in, in capping any adverse costs, if a Defendant Part 36 Offer is accepted late.
The Court can however, use its discretion when assessing costs to be awarded to the Defendant.
Disbursements are also recoverable as part of EL PL Fixed Costs and are governed by CPR 45.19 and 45.29I (both extracts are similar, with 45.19 referring to Portal disbursements, and 45.29I referring to non-Portal disbursements):
(1) Subject to paragraphs (2A) to (2E), the court—
(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but
(b) will not allow a claim for any other type of disbursement.
(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the disbursements referred to in paragraph (1) are—
(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;
(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;
(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;
(d) court fees;
(e) any expert’s fee for attending the trial where the court has given permission for the expert to attend;
(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;
(g) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and
(h) any other disbursement reasonably incurred due to a particular feature of the dispute.”
It should be noted that, unlike RTA Fixed Costs, MedCo does not apply and therefore CPR 45.19 and 45.29I does not specify any fixed fees for medical experts. Though the list of disbursements recoverable is not exhaustive, CPR45.19(e) and CPR 45.29I(h) provide a ‘sweeping-up clause’ for any additional disbursements not listed. This aspect of the CPR is however, extremely contentious, with the recent case of Aldred v Cham  EWCA Civ 1780 providing clarification that only disbursements arising from features of the dispute (liability disputes, etc) are recoverable, and not those arising from features of the Claimant (translation fees for example). More on this issue can be read about here.
It is important, therefore, that if your claim is likely to be subject to EL PL Fixed Costs, that any disbursements you considering incurring will be recoverable on conclusion, otherwise this will erode your profit recovery. Caution should be taken for instance, before instructing Counsel to advise on any fixed costs matter, with limited scope being available for recovery of their fees.
How Can ARC Costs Assist?
ARC Costs are a team of Costs Draftsman and Costs Lawyers who regularly deal with costs disputes for both receiving and paying parties. Traditional practice involves assisting in the recovery/contesting of costs which fall to be assessed on the standard basis under Detailed Assessment Proceedings. However, at ARC Costs we also have a specialist team with regularly assist with Fixed Recoverable Costs and disbursements disputes.
Numerous disputes may occur even within the fixed costs regime, including the amount of disbursements recoverable, and any dispute as to which stage in which the matter settled. We can also assist in advising on costs consequences before the matter is settled. We hold extensive experience across the team in assisting both receiving and paying parties.
Should you require any assistance, or wish to discuss a costs query with us, please contact us on 01204 397302 or email one of the team on firstname.lastname@example.org. Alternatively, you can complete our enquiry form and supply documentation, and a costs expert will contact you following review of the file.
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