Solomon -v- Cromwell Group Plc & Donna Oliver -v- Sandra Doughty [2011] EWCA Civ 1584

Posted on Monday, December 19th, 2011

In both of these claims which settled by the acceptance of the Defendants’ part 36 offers totalling less than £10,000, the Claimants argued that costs should be assessed on the standard basis in accordance with CPR 36.10(3). The Defendants argued that costs should be fixed in accordance with section II of Part 45. In Solomon, the District Judge found that CPR 36.10 operated so as to give costs on the standard basis but that it was open the Judge carrying out the assessment to have regard to the costs which would have been recoverable under CPR 45II. The appeal Judge found that 36.10 applied only to proceedings and there were none other than those commenced under CPR 44.12A, and therefore costs would be calculated by reference to Part 45II. In Oliver, the District Judge held that CPR 45II established the reasonable and proportionate costs of the items to which it relates for the purposes of assessing recoverable costs. It was also argued that the terms of settlement provided for standard basis costs irrespective of the rules. Both Claimants appealed on the basis that CPR 36 gave a right to costs on the standard basis which could not be overridden by CPR 45II. The Court found that steps taken in contemplation of proceedings were proceedings for the purpose of CPR 36.10(1). Despite the unqualified terms of CPR 36.10(3) it could not have been the intention for a Claimant accepting a Part 36 offer before the commencement of proceedings to be in a better position than one accepting a Part 36 offer otherwise. Where rules contained general and specific provisions which were in conflict, the general must give way to the specific. Reading the rules as a whole, there was no doubt that CPR 45II was intended to govern he class of cases to which it applied to the exclusion of other rules. Parties could settle on any terms they wished and enforce the agreement by normal means, however, having elected to proceed by CPR 44.12A, no agreement by the parties could alter the amount the Court was able to award. Furthermore, nothing in the Defendant’s correspondence in Oliver suggested an agreement by the Defendant to pay more than was permissible under the rules. Appeals dismissed.

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