The Supreme Court Costs Office

No.7 of 2007

Willis v Nicolson [2007] EWCA Civ 199

13 March 2007

Buxton, Smith and Wilson LJJ

In a catastrophic injuries road accident claim, Field J had refused to impose a costs cap on the claimant’s costs on the grounds that he did not consider there was a real and substantial risk that without such an order, costs would be disproportionately and unreasonably incurred. However he had ordered that the claimant’s costs from the date of their estimate (put at £459,496) should not exceed that figure.

The Court refused to disturb Field J’s decision and made some general observations about costs capping. Timing an application required careful selection. Since a costs cap could not apply retrospectively to costs already incurred, leaving an application to close to the trial was hopeless. The costs of the costs capping exercise were also relevant. If the costs capping exercise was done properly, it was likely to be as expensive and as time consuming as a final [detailed] assessment. Accordingly it should be left to the Rules Committee to decide whether rule changes were needed to address these issues and in order to reconcile the conflicting decisions about the circumstances in which costs capping orders should be made (see Smart v East Cheshire NHS Trust [2003] EWHC 2806 QB (Gage J) and King v Daily Telegraph [2005] 1 WLR 2282).