The Court of Appeal (CA) has decided that protocol for Pre-action discovery is covered under the fixed cost regime. Costs will therefore normally be limited to the fixed rates – Sharp v Leeds CC [2017] EWCA Civ 33
This case involved Miss Sharp , the Claimant (C) who tripped on a footpath and injured her wrist. She brought a claim against Leeds City Council ,the Defendant’s (D) through the Portal under the Employer’s Liability / Public Liability Protocol.
The claim ceased to continue within the Employer’s Liability / Public Liability Protocol and thereafter fell within the Personal Injury Protocol. D failed to give disclosure and C made a Pre-action Discovery application. By the time of the hearing at Wakefield County Court, D had given the necessary disclosure, but DJ Heppell awarded C the costs of the Pre-Action Discovery application and summarily assessed them at £1,250. On appeal Judge Saffman concluded that the fixed costs regime applied, with the result that payable costs were reduced to £305
The CA’s view was that fixed costs applies to the costs of a pre-action discovery application although the CA acknowledged it would largely negate the value of pre-action discovery applications as a way of making insurance backed defendants comply with their protocol disclosure obligations. The Court of Appeal suggested that one answer would lie in the availability of an application under CPR 45.29 if exceptional circumstances can be shown (no guidance was provided as to what standard would apply).
This makes the application for pre-action discovery or rather disclosure far less attractive and defendants are more likely to be able to avoid their disclosure obligations.
