The question of whether or not an application is “interim” or not can be very important to matters started within the RTA or PL/EL Protocols, as CPR 45.29H establishes a fixed costs regime, which can only be circumvented if there are, pursuant to CPR 45.29J, “exceptional circumstances”. The question was considered in Mrs Justice Carr’s judgment in Parasa v. Smith & QBE Insurance, after hearing the Claimant’s appeal. A copy of the Judgement is available on the website of Gordon Exall (barrister), Civillitigationbrief.com.
By way of background, the Defendant had accepted the Claimant’s Part 36 offer out of time. The Claimant made an application for their costs of the action to be paid on an indemnity basis, based upon a number of CPR provisions, including CPR 45.29J. The application was refused and the Defendant was awarded their costs of responding to the application, assessed in accordance with CPR 45.29F. The Claimant appealed both the outcome of the application and the costs order, claiming that the Defendant should only have been awarded costs of the application under CPR 45.29H.
When considering the appeal, Mrs Justice Carr noted that CPR 45.29H was only relevant if the application had indeed been an interim application and that it “must mean something” that the provision did not apply to applications generally. Mrs Justice Carr held that the judge hearing the original application had been correct to consider that the application for indemnity costs was not an interim one, because (with the acceptance of the Part 36 offer) the substantive litigation had ended and the application was not in pursuit of damages for the personal injury, but for the associated costs of the claim.