HHJ Simpkiss (Designated Circuit Judge)

with DJ Lethem (Regional Costs Judge) as assessor

Tunbridge Wells CC, 23rd January 2014

The claim left the Portal and went into Part 7 proceedings where it was settled by a consent order. That read that the Defendant was to pay the Claimant standard basis costs to be assessed if not agreed. The Claimant argued that meant they could not be restricted to fixed Portal and had the Defendant wanted to argue that fixed costs applied they should have done so before the order was made, not when costs were being assessed.

The court noted there were two issued, firstly whether the paying party could take a point under CPR 45.36 (now 45.24) at the time the judgment was given and secondly whether an award of costs on the standard basis precluded an argument under CPR 45.36 (now CPR 45.24).

The court held there was nothing in the rules which supported the contention that an order for costs under CPR 45.36 (now 45.24) had to be made at the time the order for costs was made. The court also noted that if the Rules Committee had intended that power should only be exercised at the stage when a costs order was made then it was surprising that the provision was not included in Part 44.