The Weekly Roundup: The Be Careful What You Wish For Edition

• Published date: 19 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: 1 Chancery Lane
• Author: Mr Russell Wilcox and Robert Parkin

This week's edition of the Roundup concerns two cases involving costs agreements which parties may subsequently have come to regret: the decisions in Doyle v M&D Foundations and Building Services Limited [2022] EWCA Civ 927 and Candey v Tonstate Group Ltd & Others [2022] EWCA Civ 936. And the Court of Justice of the European Union has added to the body of caselaw on 'extraordinary circumstances' within the meaning of Regulation (EC) No.261/2004 (better known as the Denied Boarding Regulation) with the revelation (in KU v SATA International, Case C-308/21) that the failure of an airport's refuelling system can be regarded as an extraordinary circumstance for the purposes of the Regulation, which seems rather inconsistent with previous decisions on the issue. We sometimes wonder whether the ability to predict the approach the CJEU will take has completely deserted us, especially in relation to the Denied Boarding Regulations.

When are Fixed Costs not Fixed Costs? When there's a Consent Order

In Doyle v M&D Foundations and Building Services Ltd [2022] EWCA Civ 927 [2022] 7 WLUK 76 the Court of Appeal grappled with the question of whether or not a consent order which recorded that the costs of the claim would be subject to detailed assessment in the context of a claim to which the fixed-costs regime would ordinarily apply nonetheless had the effect of disapplying that regime by agreement.

The background to the case was that the respondent had, in November 2016, issued a claim for damages against the appellant having suffered injury in the course of his employment. Originally handled under the Pre-Action Protocol for Low Value Personal injury Claims, by July 2018 the Claim had fallen out of the Protocol and become the subject of without prejudice negotiations. The appellant made a Part 36 offer of '5000; the respondent indicated its willingness to accept the same but not as straight Part 36 offer since it had been made within 21 day of the trial and therefore fell within the ambit of CPRr.36.13(4). A consent order was duly drawn up and sealed recording the settlement sum and providing that the appellant pay the respondent's costs, "such costs to be the subject to detailed assessment if not agreed". The respondent thereafter lodged a bill of costs for detailed assessment on the standard basis. The appellant objected, contending that the case fell within the fixed recoverable costs regime set down in CPR 45 IIIA. That argument was rejected at first instance, where it was held that the fixed-costs regime did not apply since the parties had contracted out of it.

The Court of Appeal also upheld the decision. In the first place, following the case of Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525, [2017] 10 WLUK 238, it reiterated that the proper approach to interpreting a court order was for it to be given its ordinary and natural meaning, bearing in mind its object and proper context:

"27. In the present case, where the Order was by consent and so made administratively by the...