Introduction

The case of Doyle v M&D Foundations & Building Services Ltd ([2022] EWCA Civ 927) addresses the intricate interpretation of cost provisions within consent orders in the context of ex-Protocol personal injury claims. This case revolves around whether the phrase "subject to detailed assessment" within a consent order signifies an intention to adhere to the fixed costs regime under CPR Part 45 or to shift to a standard basis assessment. The appellant, M&D Foundations & Building Services Ltd, contested the respondent's interpretation that the detailed assessment referred to assessing fixed costs, thereby maintaining adherence to the fixed costs regime. This appellate decision clarifies the boundaries between fixed costs and standard basis assessments in consent orders.

Summary of the Judgment

The appellant was initially ordered by District Judge Rogers to pay the respondent £5,000 in damages related to an employment injury, along with the respondent's costs "subject to detailed assessment if not agreed." The appellant appealed the detailed assessment approach, arguing that, as an ex-Protocol low-value personal injury claim, the case should fall under the fixed recoverable costs regime of CPR Part 45. The Court of Appeal upheld the lower court's decision, rejecting the appellant's contention. The appeal centered on whether "detailed assessment" in the consent order implied an assessment on the standard basis, thereby disapplying the fixed costs regime, or if it could refer to determining fixed costs and disbursements.

Analysis

Precedents Cited

The judgment references several key cases that influenced the Court's decision:

• Solomon v Cromwell Group Plc [2011] EWCA Civ 1584: Affirmed that parties can contract out of the fixed costs regime.
• Broadhurst v Tan [2016] EWCA Civ 94: Distinguished fixed costs from assessed costs, emphasizing their conceptual differences.
• Sharp v Leeds City Council [2017] EWCA Civ 33: Reinforced the comprehensiveness of the fixed recoverable costs regime.
• Adelekun v Ho [2019] EWCA Civ 1988: Discussed the misapplication of "detailed assessment" in the context of Part 36 offers.

Additionally, principles from Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 and Arnold v Britton [2015] UKSC 36 were employed to elucidate contractual interpretation standards.

Legal Reasoning

The court meticulously analyzed the phrase "subject to detailed assessment" within the consent order. The natural and ordinary meaning of the term, as established by the Civil Procedure Rules (CPR) and relevant case law, dictates that "detailed assessment" refers to an assessment on the standard basis under Part 47, not to an evaluation of fixed costs under Part 45.

The judgment emphasized that:

• Rule 44.3(4)(a) defaults costs assessment to the standard basis if not specified.
• Rule 44.6(1) clarifies that detailed assessments pertain to costs outside the fixed costs regime.
• Fixed costs under Part 45 are distinct and managed separately, with no provision for detailed assessment under this rule.

The Court of Appeal determined that the use of "detailed assessment" was unambiguous within the CPR framework, thereby indicating an intention to assess costs on the standard basis, thereby excluding the fixed costs regime unless explicitly stated otherwise.

Furthermore, the context of the agreement between specialist solicitors was deemed irrelevant in altering the natural meaning derived from the CPR. The court held that the phrase cannot be reinterpreted based on the perceived intentions or sophistication of the parties involved.

Impact

This judgment reinforces the clear distinction between fixed costs and standard basis assessments within consent orders. It underscores the principle that contractual language within consent orders must align with the technical definitions provided by the CPR. As a result, parties entering into consent orders must exercise precise language to ensure their intentions regarding cost assessments are unequivocally reflected, thereby minimizing ambiguity and potential disputes in future cases.

Additionally, this decision acts as a cautionary tale for litigants and their legal representatives to adhere strictly to procedural rules when drafting consent orders, particularly concerning cost provisions. Missteps in terminology can inadvertently shift the costs regime, leading to unintended financial consequences.

Complex Concepts Simplified

Fixed Costs vs. Standard Basis Costs

Fixed Costs: Predetermined amounts set by the rules, applicable primarily in low-value personal injury cases. These costs are recoverable regardless of the actual work done, promoting proportionality and predictability.

Standard Basis Costs: Costs assessed based on the actual work performed, covering all reasonable and proportionate expenses. This assessment provides a more accurate reflection of the parties' legal expenditures.

Detailed Assessment

A detailed assessment refers to a meticulous evaluation of costs by a costs officer under CPR Part 47, typically leading to standard basis costs. This process is distinct from the fixed costs regime and cannot be conflated with the assessment of fixed costs under Part 45.

Consent Order

A consent order is an agreement formalized by the court, reflecting the mutual consent of the parties involved. It outlines the terms of settlement, including cost provisions, and holds legal enforceability similar to a court judgment.

Conclusion

The Court of Appeal's decision in Doyle v M&D Foundations & Building Services Ltd serves as a definitive clarification on the interpretation of cost provisions within consent orders, particularly distinguishing between fixed costs and standard basis assessments. By reaffirming that "detailed assessment" unequivocally refers to standard basis costs under CPR guidelines, the judgment ensures greater certainty and adherence to procedural rules in cost management within legal settlements.

This case emphasizes the necessity for precise language in legal agreements and highlights the judiciary's commitment to upholding the structured framework provided by the Civil Procedure Rules. As such, legal practitioners must exercise meticulous care in drafting cost-related terms to align with the intended costs regime, thereby safeguarding their clients' financial interests and minimizing post-settlement disputes.