Permission for second appeals in two important cases.

Taylor Rose is returning to the Court of Appeal again on two important costs issues.

Adelekun v Lai Ho will hopefully resolve once and for all the debate over whether an agreement or order for costs to be assessed on the standard basis ousts the fixed costs applicable under the rules. The parties agreed that sort of ‘vanilla’ consent order after a Part 36 offer was accepted, primarily to vacate an upcoming hearing. After the offer was made the parties agreed in principle that the claim should be reallocated to the multi-track, but it did not happen before settlement. At first instance the judge held CPR 45 Section IIIA fixed costs applied. On appeal, despite the very full argument, the circuit judge allowed the appeal essentially on a point he developed himself, that the parties had agreed to displace fixed costs. Granting permission for a second appeal, Lewison LJ said the important points of principle were whether a reference to CPR 36.13 displaces fixed costs in itself and whether a subsequent order giving effect to the settlement ought to be treated as a variation of the settlement.

Cham v Aldred will give guidance on the allowance of counsel’s fees in Section IIIA fixed costs cases. The issue is whether counsel’s fees form part of the fixed costs or may be allowed as disbursements under CPR 45.29I(2)(h), which concerns disbursements arising due to a particular feature of the dispute. The particular fees in this case are for advice on a child’s settlement (a fee for attendance at the approval was conceded). The rules appear to suggest such a fee should be allowed only where damages exceed £10,000. Here they did not, as indeed they would not in many child claims. The first instance and first appeal judge allowed the fees. Lewison LJ again granted permission for the second appeal, observed that the appeal ‘raises a point of principle of great importance’.

Both appeals should be heard by early 2020.

Matthew Hoe, Taylor Rose Director of Dispute Resolution, acts for both appellants.