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Doyle (claimant/respondent) v M & D Foundations & Building Services Ltd (defendant/appellant)

Tuesday 22 March 2022

Second appeal

The Defendant appeals against the order of HHJ Ingram dated 10 February 2021 sitting in Sheffield County Court dismissing D’s appeal against the order of DJ Rogers dated 21 May 2019.

The issue is whether in low value ex-protocol RTA, employer’s liability and public liability claims an agreement for costs to be subject to detailed assessment if not agreed amounts to an agreement between the parties to disapply Fixed Recoverable Costs.

In this case the C contended and the judges below accepted that FRC did not apply: not because any of the exceptions in CPR 45IIIA applied but because in responding to D’s Part 36 offer C had responded stating that it could not be accepted because the Part 36 offer was made less than 21 days before the trial date. As result CRR 36.13(4) applied, a deemed costs order would not result from mere acceptance and an order was required recording the parties’ agreement as to the principle of costs.

C proposed an order that D pay C’s costs such costs to be subject of detailed assessment if not agreed.

D agreed to this. The judges below held that this D intended to and did agree to the disapplication of FRC and to pay costs on conventional basis.

D submits that the judges were wrong in law to reach this conclusion.

D submits that the question whether an agreement to a reference to costs to be subject to detailed assessment in an order requested to satisfy requirements of CPR 36.13(4) can properly be taken as an objective agreement to oust the operation of the FRC is an important issue of principle and practice satisfying the second appeals test.

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