Nullam Iurisdictionem: Can the Court Order pre-issue costs on a post-issued Pre-1st Oct 2023 Personal Injury claim?

In a case, you represent a claimant who has incurred injuries due to the negligence of the defendant. The claim began life in the MOJ low value portal, exited due to a time out before the defendant admits liability. The damages for PSLA amount to more than £10,000 but less than £25,000. Collecting the necessary evidence for the claim proves to be challenging. This difficulty arises from the need to wait for medical treatment to be completed and for recovery times to unfold. Additionally, there may be errors within the medical reports that require clarification from the expert instructed.

You then get to a position where imitation is approaching and you have to do the necessary thing to protect your client’s position which is to issue a protective claim form. You are finally in a position where you could advise your client that it’s appropriate to disclose the evidence and invite office from the defendant. The conundrum that you face is the defendant is arguing that you have been unreasonable in leaving evidence to be served at the last minute and have now caused the fixed cost regime to fall into the post-issue pre-allocation section of the prescribed fixed costs. They are now arguing that you should only be eligible to pre issue costs.

In this example this is a case where the accident happened before 1st October 2023. You apply to the court for an order for your fixed costs to be paid by the defendant. The defendant argues that the court has the power and should exercise the power to limit you to pre-issue costs. Should the court? Can the court?

This was the situation last week where I was instructed by a claimant to make submissions that the Court could only award the post-issue, pre-allocation costs. 

The parties’ positions

IIt was the claimant’s position that the fixed costs regime is a self-contained system which is inherently different from a summary and detailed assessment of standard costs.

In this situation it meant that the court had very little power to grant costs Order other than the ones that the rules ordered. If there was a rule that allowed court to do something or the discretion to do something then that was OK. If the rules did not include such a rule, then the court did not have that power. The claimant also argued that the conduct of the matter was within the keeping of the spirit of the pre action protocol and that limitation prevented settlement as the claimant was not quite in the position. 

The hearing

We appeared before a regional costs Judge and I made the argument. I provided the Judge with an example where there was a rule for discretion:-

Failure to comply or electing not to continue with the relevant Protocol – costs consequences

45.24

(1) This rule applies where the claimant –

(a) does not comply with the process set out in the relevant Protocol; or

(b) elects not to continue with that process, and starts proceedings under Part 7.

(2) Subject to paragraph (2A), where a judgment is given in favour of the claimant but –

(a) the court determines that the defendant did not proceed with the process set out in the relevant Protocol because the claimant provided insufficient information on the Claim Notification Form;

(b) the court considers that the claimant acted unreasonably –

(i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7;

(ii) by valuing the claim at more than £25,000, so that the claimant did not need to comply with the relevant Protocol; or 

(iii) except for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued; or

(c) the claimant did not comply with the relevant Protocol at all despite the claim falling within the scope of the relevant Protocol, the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19. 

I went on step further and directed the Judge to new Post-1st October 2023 rules, specifically CPR 45.13:-

Unreasonable behaviour

45.13.—(1) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made in favour of a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be reduced by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.

(2) Where, in a claim to which Section VI, Section VII or Section VIII of this Part applies, an order for costs is made against a party whom the court considers has behaved unreasonably, the other party may apply for an order that those costs be increased by an amount equivalent to 50% of the fixed recoverable costs which would otherwise be payable.

(3) In this rule—

(a)unreasonable behaviour is conduct for which there is no reasonable explanation; and

(b)“fixed recoverable costs which would otherwise be payable” does not include—

(i)VAT;

(ii)any additional amounts under rules 36.17 or 36.24; or

(iii)any disbursements.

I submitted that this showed the new CPR had further discretion that was available ot the court, which did not exist in the relevant pre-1st October 2023 rules.

I went on to argue about how the unexpected, longwinded nature of personal injury litigation meant the conduct was not unreasonable.

My opponent argued that the conduct of the claimant during the pre-issue stage (and subsequent issuing of proceedings) violated the Personal Injury Protocol, and the court has the discretion, in accordance with CPR 44.2, to restrict the claimant’s costs to those that would have been permissible prior to the commencement of the action. It was argued that there was nothing within 45x.29E that hindered the court’s ability to exercise its discretion under CPR 44.2.

My opponent referred to Williams v The Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852, which was argued to demonstrate how Part 44 and Part 45 complimented each other and, therefore, the court did have the power to exercise Part 44.2 in a Part 45 case. It was accepted that the fixed costs that the defendant could ask the court to restrict to must be what was available at the pre-issue stage, but the claimant’s conduct warranted the exercising of such power.

In a brief response, I reminded the court that Williams was, in fact, a case that never started in the low-value protocol and was therefore, as a starting point, subject to standard costs. What the defendant in that case argued was that the court should limit the costs to what should have been had it correctly started in the portal. There, the court had the power of Part 44.2 to emulate the fixed costs rule of 45.24. I said this is not the same here and Part 45 cannot emulate Part 44.2.

Judgment

The judge determined that the claimant’s position was correct. He found that:-

• The fixed costs are self-contained, with certain exceptions; however, none of those exceptions applied here. The fact that there is now a new regime that allows for a 50% increase and decrease for unreasonable conduct was relevant.
• If simply referencing Rule 44.2 was the solution to everything, what was the need for the new rules?
• He was not being asked to disallow costs, but allow costs rules from one section apply to another. 
• To allow that would introduce uncertainty 
• Williams was about how Part 45 cannot restrict when outside the ELPL protocol and outside the portal aspect, but the Part 44 can replicate Part 45 in Part 44 circumstances. This was not the case here.

He also went on to say that even if he was not wrong, the circumstances were not the most ideal, but appreciated the ongoing symptoms meant not being in a position to settle. Whilst there was criticism of ‘suboptimal’ engagement with the defendant, it would not have amounted to unreasonable conduct.

Comments

I have dealt with many fixed costs arguments, where the prescriptive nature has led to certainty save for the fact that one party has either not appreciated it or has hoped to circumvent it. My next article will be about how that applies to stage 3 hearings which the outcome meant that the claim should have commenced within the OIC whiplash portal, yet stage 3 costs apply.

I appreciate that it may seem perverse, and to some extent it is, but the prescriptive nature of Part 45 has had advantages and disadvantages for both claimants and defendants (Aldred v Cham being one that specifically comes to mind). The new Part 45 has more flexibility and discretion for the court, but it is still in its infancy (in comparison, the pre-1^st October 2023 Part 45 is twelve years old in July).  

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026. 

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.