Court of Appeal decides costs issues where claim was not brought under EL/PL Protocol but settled before start of proceedings

CPR r.45.14 provides that where a claimant unreasonably fails to comply with either the RTA or EL/PL Protocol, and starts proceedings under Part 7 instead, the court may order that the winning claimant recovers no more than the fixed costs which would have been recoverable had the claim been brought under the relevant protocol. The issue in this case was what happens where a claim is settled before the commencement of proceedings.

In an earlier judgment, it was held that the claimant's claim for noise-induced hearing loss should have been brought under the EL/PL Protocol and so the claimant was only entitled to the fixed costs specified in that protocol. That judgment was then reversed and a further appeal was brought to the Court of Appeal. The Court of Appeal has now held that:

(1) Neither the EL/PL Protocol nor CPR r45.24 provides a mechanism which automatically applies the fixed costs regime in circumstances where a claim has not been started under the protocol and/or has not been the subject of a Part 7 claim (or judgment).

(2) However, in a case where the protocol should have been used, and its non-use was unreasonable then, pursuant to the CPR r44 conduct provisions, the claimant will usually be entitled to recover only the fixed costs and disbursements permitted by the protocol.