The Claimant fell off a ladder at work and brought a claim for personal injury, pleading a claim for damages well in excess of the fast-track limit (then £15,000). At the multi-track trial, which ran into a second day, the Claimant recovered damages of £9,291.56. The Recorder ordered costs to be assessed on the standard basis. The Claimant’s Solicitors lodged a bill of costs seeking £78,458.65 including a 100% uplift reflecting a CFA. At the costs assessment the District Judge ruled that she would be assessing the costs from March 2006 as if the case had been allocated to the fast track, which restricted the level of trial costs recoverable.

Held: The fact that a party has not raised a matter with the trial judge does not preclude him from raising it before the costs judge under CPR 44.5. When assessing costs under 44.5 the costs judge must have regard to “all the circumstances” of the case, and to the factors set out in 44.5(3) which include conduct, efforts made to resolve matters, value of claim, importance to parties etc. However, the District Judge was not entitled to find that she was going to assess the costs of trial, at the outset, as if the case were on the fast track. To do so seemed to the Court of Appeal to rescind the Recorder’s order. It was however permissible to assess costs on the standard basis taking into account that the case should have been allocated to the fast track. The case was remitted to the District Judge for reconsideration on this basis.

Comment: This is a very useful decision for defendants and insurers. Claimants cannot “run-up” costs in over-pleading their claims and escape without consequences when it comes to costs. Also, the notion that a paying party cannot, as a matter of principle, raise issues of conduct during the costs assessment has been finally and conclusively rejected.