Caren Sharp v Leeds City Council [2017] EWCA Civ 33

The appellant had suffered injury when she fell on paving which was maintained by the respondent. She initially began her claim under the EL/PL Protocol. It later ceased to continue under that Protocol, although the precise reasons for this were disputed.

The case thereafter proceeded under the PI Protocol. The respondent failed to give pre-action disclosure pursuant to that Protocol and the appellant had made an application for the same. Disclosure had been given by the time that the application was heard but the appellant received her costs of the application in the sum of £1,250. On appeal the costs had been reduced to £300 on the basis that her application was caught by the EL/PL fixed costs regime. The appellant appealed the reduction.

The Court of Appeal was asked to decide whether the fixed costs regime applied to applications for pre-action disclosure in cases which were started, but no longer continued, under the EL/PL Protocol.


The Court of Appeal held that fixed costs do apply to such applications. From the moment of entering the Portal, the intention was that fixed costs would apply to a claim at all subsequent stages. Part 45 clearly provided that fixed costs were “the only costs allowed”, subject to a very small category of clearly stated exceptions.

While an application for pre-action disclosure was self-contained and distinct from the main action, there was a close connection between the two. It was apposite for such an application to be classed as an “interim application” for the purposes of r45.29H.

There was real force in the appellant’s submission that limiting claimants to fixed costs would deprive pre-action disclosure application of their value as a “spur to compliance”. However, the answer was not to exclude such applications from the fixed costs regime. Applying assessed costs to such application could give rise to unwelcome satellite litigation. The answer lay in the availability (in exceptional circumstances) of an application under 45.29J for costs exceeding fixed recoverable costs. The Court of Appeal acknowledged that the Rules Committee may need to keep the issue under review as it may be that claimants in such cases struggle to demonstrate “exceptional circumstances”.

February 28, 2017 · Editorial Team · Comments Closed
Posted in: Cases