The introduction of the Fixed Recoverable Costs (‘FRC’) regime in low value personal injury had created a predictable prescription for costs, but it did not eradicate disputes from occurring about disbursements and, on occasion, whether a different FRC regime applied.
However, the landscape has evolved significantly. The expansion of the FRC regime marks a major shift in how costs are determined across a broader range of cases. With more claims now falling within fixed costs, the scope and importance of Fixed Costs Determination Hearings have also changed considerably.
What is a Fixed Costs Determination Hearing?
When there is a dispute on the relevant costs and disbursements recoverable, and the parties cannot resolve the issue, then the Court is asked to determine this. However, this is not an assessment of costs in the usual manner, nor a summary nor a detailed assessment of costs.
This has always been the inference from CPR 44.6:-
Procedure for assessing costs
44.6
(1) Where the court orders a party to pay costs to another party (other than fixed costs) it may either –
(a) make a summary assessment of the costs; or
(b) order detailed assessment of the costs by a costs officer,
unless any rule, practice direction or other enactment provides otherwise.
(Practice Direction 44 – General rules about costs sets out the factors which will affect the court’s decision under paragraph (1).)
(2) A party may recover the fixed costs specified in Part 45 in accordance with that Part
The obiter decision of Doyle v M&D Foundations & Building Services Limited [2022] EWCA Civ 927 affirmed the same where Phillips LJ (in para 47) considered the position on whether fixed costs and disbursements, were subject to summary or detailed assessment:-
47. In Adelekun Newey LJ noted at [19] that Part 45 does not itself explain how the amount recoverable in respect of disbursements under rule 45.29I is to be determined (the assumption being that no determination at all is necessary in relation to fixed costs other than disbursements), but recorded that it was common ground between counsel that the provisions in Part 47 relating to detailed assessment would apply. In my judgment the position agreed by counsel in that case was not correct, for the following reasons:
i) As referred to above, the provisions as to detailed assessment in rule 44.6 make it clear that such assessments do not apply to the fixed costs regime set out in Part 45.
ii) Those provisions were referred to by Master Leonard (sitting in the Senior Courts Costs Office) in striking out a Notice of Commencement of detailed assessment proceedings in Nema v Kirkland [2019] 8 WLUL 301 (see [53]). At [54] Master Leonard held that a party seeking determination of the number of disbursements should do so by an interim application under rule 45.29H, which provided for fixed costs of such application, rather than by the more expensive process of detailed assessment.
iii) In so holding, Master Leonard relied on the unreported decision of Master Howarth in Mughal v Samuel Higgs & EUI Limited (SCCO unreported, 6 October 2017), also striking out a Notice of Commencement of detailed assessment proceedings. Master Leonard summarised Master Howarth’s reasoning as follows:
“…the whole purpose of the fixed costs regime was to avoid the necessity of either summary or detailed assessment. It was not open to the claimant to draft a bill of costs and use the detailed assessment procedure, so increasing costs in proceedings where fixed costs were meant to apply… the appropriate course, in fixed costs cases, was for an application to be made to the court.”
iv) Mr Mallalieu pointed out (in written submissions following the conclusion of the oral hearing) that the parties in Nema did not draw Master Leonard’s attention to two provisions in Practice Direction 47: (i) paragraph 5.7, which provides that if the only dispute between the parties on detailed assessment concerns disbursements, the bill of costs shall be limited to the title page, background information, a list of disbursements and brief submissions as to those disbursements; and (ii) paragraph 13.5, which provides for such a dispute to be determined on the papers without a hearing. Whilst it is true that those provisions would limit the complexity and cost of disputes as to disbursements on a detailed assessment, those aspects being significant factors in Master Leonard’s decision, they do not undermine the sound foundation of both his and Master Howarth’s conclusion that Part 45 provides an entirely self-contained regime for fixed recoverable costs (including disbursements specified in rule 45.29I), separate and distinct in all respects from assessments under rule 44.6(1), whether summary or detailed.
v) It therefore appears that specialist judges sitting in the Senior Courts Costs Office do not consider that detailed assessment is a permitted method for determining costs (or disbursements) under the Part 45 regime (although the parties can no doubt use that route by agreement). Mr Mallalieu asserted that that was not the general practice, but produced no authority or example supporting his contention.
This follows a decision of the High Court of Nema v Kirkland [2019] EWHC B15 (Costs), where a Claimant, whose low‑value road traffic accident claim was subject to the fixed recoverable costs regime under Part 45, commenced detailed assessment proceedings following acceptance of a Defendant’s Part 36 offer. After settlement, a dispute arose solely over £564 in disbursements (including counsel’s fees and engineer’s photographs).
The Claimant issued a Notice of Commencement and bill of costs, prompting the defendant to apply to strike them out on the basis that a detailed assessment was impermissible where fixed recoverable costs applied.
Master Leonard held that, once CPR 36.20 applies, the fixed costs regime provides a self‑contained and exclusive procedure for resolving costs disputes, displacing both deemed costs orders under CPR 44.9 and detailed assessment under CPR 47. Any dispute (whether concerning costs or permitted disbursements).must instead be resolved by an application to the court under CPR 36.20(11). Interesting, Master Leonard was of the view that CPR 45.29H applied to the cost of that hearing, and this would later be contradicted by Carr J (as she was then, before becoming Lady Chief Justice) as explained below.
This would mean that whether it was settlement by Part 36 (which exclusively instructed the Court to make the determination of any dispute between the liability for costs under CPR 36.20(11)), at the end of a Fast Track trial, Stage 3 hearing or at an infant approval hearing, the determination that took place was the same.
Costs of pre-1st October 2023 Fixed Costs Determination Hearings
Generally, both parties in fixed determination hearings agreed that costs were at large because the FRC regime concluded once the matter settled. Consequently, unless costs were formally decided at the end of a trial, IAH, or Stage 3 hearing, any subsequent hearing was outside the scope of the FRC regime.
In Parsa v DS Smith PLC & Another [2019] Costs LR 331, Carr J considered (amongst other things) whether the Claimant’s post-settlement application, aiming to avoid the fixed costs regime after Defendants’ late Part 36 offer acceptance, was an “interim application” under CPR 45.29H, making its costs subject to fixed limits. The personal injury claim had settled via the Part 36 offer, with an automatic stay under CPR 36.14, leaving only costs in dispute.
When their application failed, the Claimant attempted to argue that unresolved cost issues made the application was an “interim application” within the fixed costs regime. Therefore, they were liable only for the Defendant’s costs of £ 250 + VAT. HHJ Tindal rejected that proposition, and the Claimant appealed (and on other issues argued).
Carr J rejected that argument. She held that once the substantive claim for damages had settled, the case was no longer one to which the FRC regime “applied” for the purposes of CPR 45.29H. She followed the Court of Appeal’s decision of Sharp v Leeds City Council [2017] EWCA Civ 33, that if the FRC commenced once the CNF was sent, then it was correct that it ended once the main action settled. For those reasons, the hearing was subject to costs at large, and the Circuit Judge was correct to assess on a summary basis.
Common issues raised at the Fixed Costs Determination Hearings
I have been involved in many Fixed Costs Determination Hearings and most issues that are challenged are disbursements. In particular, those concerning medical report invoices issued by medical agencies, which will also include their uplift for managing the instructional and acquisition of the medical report.
The most recent, binding authority on the issue in FRC cases was MIB v Santiago [2026] EWHC 513 (KB), which was actually in respect of the breakdown of an interpreter’s fee in a FRC case (and I comment on this in my article I wrote for chambers). However the specific point was recently dealt with JXX v Archibald & Anor; HLA v LXA & EUI Ltd [2026] EWHC 630 (SCCO), which I will deal with in a seperate article.
Other issues I have dealt with ranged from:-
- Determining whether post issue costs apply based on when a Part 36 offer was made and accepted
- Whether the Court had jursidiction to restrict to portal costs or whether it was appropriate of the Claimant to exit the portal
- Whether it was appropriate for two sets of fixed costs and trial advocacy fees.
Fixed Cost Determination Hearings post 1st October 2023
The biggest change to Fixed Cost Determination Hearings is that costs are no longer at large, as an express provision under the new FRC restricts costs and specifically determines how the hearing will be conducted.
CPR 45.63 states that if costs have not been agreed, the Court will determine the fixed costs and disbursements to which the receiving party will be entitled. If this is an application-based request for determination, then a Judge will initially consider the determination on paper. The receiving party has to file and serve a Precedent U, along with any evidence in support of the application.
The paying party will then respond and must file and serve their response within 21 days of the application being served (or 21 days of the acknowledgement of service if proceedings had not been commenced at the point of settlement).
Unless the Court orders otherwise, it will deal with the application on paper and will restrict the costs of this application to those in Table 17 of PD 45 (£500 + VAT). If dealt with on paper, the Court shall record its determination by annotating the Precedent U (in a similar manner to a provisional assessment). It will offer the parties the opportunity to challenge any aspect of the determination by filling in and serving a written request for a hearing. This must be done within 21 days of the notice, identifying the elements the party wants to challenge and providing a time estimate for the hearing. Failing to do so makes the cost decision binding.
A cost order will be made against the requesting party of the hearing if they do not obtain an adjournment in their favour of at least 20% of the sum determined. The costs of the hearing will be treated as an interim injunction under CPR 45.8 (being £250+VAT as per PD 45).
Thus the Fixed Costs Determination Hearing process has been changed.
Concluding remarks
Fixed Costs Determination Hearings weren’t summary or detailed assessments, and the new FRC has made that even clearer with its own ‘provisional assessment’-esque procedure. This also eradicates the Parsa approach to these hearings, with a restriction on those costs.
On the one hand, costs will not spiral out of control when arguing over the principle of fixed costs and disbursements. On the other hand, the restriction of fixed costs recovery may encourage ’have a go’ arguments when it comes to the determination of fixed costs. At the very least, the parties being liable for costs at large for the other party can be a reasonably good deterrent from pursuing cost arguments that may have insufficient prospects of success.
In any event, it is clear that where there is a prescribed cost regime and the parties have processed it, they will be bound by it. In terms of personal injury cases (which I am usually instructed on), the cause of action determines the applicability of this regime and these will no doubt start to appear as matters settle and disputes occur.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
