The fixed cost regime is a strange creature. A highly prescriptive framework designed to provide certainty in the allocation of costs. To achieve this, it relies on a wealth of specific rules and mechanisms, minimising the need for discretion and flexibility. It also means that the fixed costs rules can appear to be very overwhelming.
This structure leads to a clear conclusion: when a rule explicitly outlines situations in which costs can be directed to be paid, the Court has the authority to enforce that direction. Conversely, if such a rule is not present, the Court lacks the ability to grant costs. Overall, this self-contained system aims to clarify the circumstances under which costs can be awarded, ensuring that all parties understand the parameters.
I recently wrote an article about an instruction where I was for the Claimant arguing that the Judge had no jurisdiction toward pre-issue costs, even if the Judge came to the conclusion that the Claimant acted unreasonably in issuing proceedings. Whilst the Judge did find that the Claimant did not meet the threshold of unreasonable behaviour, the Judge also concluded that he did not have the jurisdiction to make an award for anything other than post-issue pre-allocation costs.
Prior to this hearing, I had a very similar argument at the Stage 3 hearing, where the Defendant sought to limit the Claimant’s costs to what would have been awarded on the Small Claims Track.
Stage 3 MOJ rather than OIC Quantum hearing
As with many RTA claims, this matter began life in the OIC portal. The rules make it clear that the Claimant can withdraw from the portal and re-commence in the MOJ portal (which was, for all intents and purposes, claims that were suitable for the fast track). This Claimant did so for an injury that later transpired to not meet the £5,000 threshold for the fast track concerning whiplash from an RTA. The totality of PSLA ended up being £3,250. We had beaten our Part B offer, but had a Judgment that was less than the Defendants Part B offer. The usual rules would say that the Claimant is entitled to their stage 1/2/3 fixed costs and disbursements.
My opponent kindly put me on notice that he was going to argue that the fixed costs of £80 (plus issue fee and medical report fees) would be the order sort because even the Claimant’s best PSLA was lower the fast track allocation threshold.
The costs argument and the reverse uno card
I raised with the Judge that my opponent would contest the costs being claim. Rather boldly, I acknowledged that the claim would not have exceeded £5,000 and, therefore, should not have ever been submitted onto the MOJ portal. I argued that despite this, the Defendant did not object to proceeding with Stage 3 under Part 8; instead, they accepted the Court’s jurisdiction without requesting a transfer to Part 7, where they could have argued for a limitation on costs.
I referenced CPR 45x.20 (x makes reference to pre-1st October 2023 version of Part 45), which outlines that if the Claimant surpasses the Defendant’s protocol offer, the Court is obligated (due to the use of the phrase ‘must’) to order the Claimant’s costs for Stages 1-3, along with disbursements, to be paid by the Defendant. The Judge seemed taken aback by my concession, so I elaborated on the prescriptive nature of the protocol and Part 45 costs, stating that unlike the normal Part 36, which allows for some discretion if deemed unjust, these costs are fixed.
I used CPR 45.29 M to demonstrate that the possibility of restricting costs arises only if Part 7 proceedings are initiated. Therefore, if the matter proceeds via Part 7, the Court would have the discretion to award costs as if on the small claims track, for example, because the value of the damages means it is better suited for the OIC portal process.
I highlighted the irony that if the Defendant had contested the use of Part 8 and sought to transfer it to Part 7, we would be bound by 45x.29M, which imposes limitations. The Judge inquired about the costs under the OIC process, to which I explained they would be around £80 instead of £1,200. When asked what would happen if a final hearing was needed, I clarified that nothing would be awarded as it fell under the SCT costs rules, which surprised the Judge, as it is expected that Claimants under OIC bear their advocacy costs.
My opponent argued that it was the Claimant’s error in choosing the wrong protocol, and was now attributing blame to the Defendant for not correcting it. He contended the Court has general discretion over costs and that the Claimant should not profit from a mistake. The Judge acknowledged the validity of my opponent’s point regarding the error on our side, but I countered that fixed costs are governed separately from assessments where discretion exists. I cited that while there are rules allowing for discretion under non-MOJ portal cases, the clear stipulations under the protocol are mandatory, leaving no room for discretion.
The Judge read out that CPR 45x.29M applies if the Claimant fails to adhere to the protocol. I clarified that 45x.29M also identifies that this holds true only if Part 7 proceedings are issued. Therefore, had the Defendant objected to Part 8 leading to a transfer to Part 7, the application of CPR 45x.29M would come into effect.
Outcome
Ultimately, the Judge agreed with my reasoning, confirming that he had no discretion in the matter. He allowed the £1,200 for costs along with the claimed disbursements, including the relevant disbursements.
It is understandable that the Defendant thought they had the Claimant cornered with their ‘Pick up four cards’ card, but ultimately the uno reverse card led to the Claimant securing Stage 3 fixed costs, when it would never have done so if it remained and proceeded via the OIC portal.
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.