Sarah Robson Barrister
A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted
Brown v Ezeugwa
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.
28. ...The issues in relation to costs fall into three stages. Stage 1 is the award of costs. Stage 2 is the decision by the assessing judge of what the order for costs means, and stage 3 is the quantification on that basis.
29. In this case Stage 1 was consented to in the order of 12th December 2012. The Defendant was to pay the Claimant’s costs, and the basis of costs was to be the standard basis. Stage 2 was, not surprisingly and not unusually, elided into Stage 3, but the deputy district judge did set about the assessment on the basis of a standard basis assessment.
30. Where, in our judgment, he went wrong was not to apply his mind to the distinction between the award of costs and the direction as to the basis that the assessment should take place with the quantification or assessment process itself. CPR 44.3 and 4 are concerned with the award and the basis of assessment. CPR 45, albeit relating to fixed costs, is one of the provisions that deals with the quantification of those costs, and therefore in our judgment there is no reason why the assessing judge cannot exercise the powers under 45.36 in carrying out that assessment.
Thus the court confirmed that an order for standard basis costs does not preclude costs being assessed under CPR 45.24 (was 45.36).
The court also confirmed the position found in Patel v Fortis that a court has the power to restrict a Claimant to Portal costs following settlement, not just judgment, a position reversed in Williams v Secretary of State for Business, Energy & Industrial Strategy  EWCA Civ 852.