Key Point

A court order for SIIIA costs where claim pre-dates SIIIA must not be slavishly followed

Akhtar v Amin & Esure

DDJ Ostroff, Clerkenwell & Shoreditch County Court, 17th Nov 17

In this case the parties had settled a large credit hire claim at a very early stage. However, the PI element could not be agreed, and went all the way to trial. At the end of the trial, the Defendant argued that the Claimant should not get costs for the credit hire based on the claim going to trial, as that had been settled so early, and also by a different firm of claimant solicitors. The judge adjourned costs to another day, and made an order for SIIIA costs to be assessed.

The Claimant later realised that the CNF pre-dated SIIIA costs, and thus advised both the court and the Defendant quite promptly that SIIIA costs would not apply. However, there was no response. On the morning of the costs hearing, some months later, the Defendant submitted a skeleton argument stating that the Claimant was obligated to pay SIIIA costs because the order had not been appealed, and it was now out of time. However it was common ground that the CNF date meant that SIIIA costs did not apply.

The judge found that in circumstances where it was plainly and manifestly wrong for SIIIA costs to apply, then notwithstanding the terms of the order, he did not have to order these incorrect costs to be paid. The Claimant noted that both counsel had a professional obligation not to allow a court to fall into error, and that both counsel were agreed that SIIIA costs should not apply.

The Defendant sought leave to appeal which was refused, and the judge noted that in addition the order was not worded as strictly as the Defendant sought, and noted it allowed some room for costs other than SIIIA costs. The Defendant renewed their application for leave to appeal on the basis that the court is bound to order SIIIA costs, and the permission decision is awaited.

This case touched around a very interesting question which sadly remains unanswered. Where you have a case with parts which settle at different stages, what fixed costs should apply? It is unfortunate that this will not now be answered by this case.

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