‘Exceptional Circumstances’ – Emma Woods considers a rare example of departure from the fast track fixed costs regime

20 Oct 2023

Key topics: Costs, fixed costs, personal injury, disclosure  

The recent matter of Tsuneyama v Wheels Logistics SRO, Swindon CC (12.9.23) was a rare example of the application of CPR 45.29J, in which ‘exceptional circumstances’ justified a departure from fixed costs of an application in fast-track matter.

Tsuneyama was an RTA quantum-only claim, which was due to be listed for a half-day trial/assessment of damages, two weeks after the application hearing. D had applied for an Unless Order for disclosure, concerning a second RTA, which had also resulted in a claim being made, but in respect of which C had failed to give disclosure.

Some disclosure was provided in the intervening period between the application and the hearing.

D argued that the failure to provide disclosure concerning the second accident, which was listed before a different court but with an associated solicitor’s firm, rendered a fair trial almost impossible. It did not appear that C’s medico-legal expert had been provided with medical records post-dating the second accident.

D argued that the court could not therefore properly assess to contribution of the second accident – which was ten months after the first – on C’s claimed ongoing symptoms. D suggested that a fair and proportionate way to deal with the matter, would be to permit the trial to proceed, but to limit C’s recovery of all damages to the date of the second accident.

District Judge Humphreys described D’s proposal as ‘attractive’ but ultimately declined to adopt it as it may unduly tie the hands of the trial judge.

The DJ adjourned the trial “with great reluctance” on ‘Unless Order’ terms concerning the disclosure, in default of which the general damages claim would stand struck out.  He said that the fault appeared to be with the claimant solicitors left hand not knowing what the right hand as doing.

The DJ awarded D the costs of the application but declined to be confined to the £250 permitted under the fast-track fixed costs regime (CPR 45.29H). The DJ determined that CPR 45.29J came into play, and the claimant’s failure to give proper disclosure of material documents concerning second accident – which was currently before a different court – had rendered a fair trial impossible and occasioned an avoidable adjournment at a late stage.

This amounted to ‘exceptional circumstances’ and the defendant was awarded £3,000 by way of the costs of the application.

HCC Solicitors acted for the defendant, instructing counsel from Gatehouse Chambers.

Article by Emma Woods


Emma Woods

Call: 2017


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