There is no doubt that the rules allow a court on detailed assessment to limit a party’s recoverable costs to those that would have been applicable to a particular track even if the matter settled pre-allocation. That is what CPR 46.13(3) expressly provides for:
“Where the court is assessing costs on the standard basis of a claim which concluded without being allocated to a track, it may restrict those costs to costs that would have been allowed on the track to which the claim would have been allocated if allocation had taken place.”
Costs are then limited to Fixed Recoverable Costs for matters that would normally have been limited to the fast track even if they settle pre-allocation:
CPR 45.43(1):
“This Section applies to any claim which would normally be or is allocated to the fast track.”
CPR 45.44:
“For so long as the claim is allocated neither to the small claims track, the intermediate track or the multi-track, the only costs allowed in any claim which would normally be or is allocated to the fast track are (a) the fixed costs in Table 12”
Identical provisions apply for the intermediate track:
CPR 45.49(1):
“This Section sets out the costs which are to be allowed in any claim which would normally be or is allocated to the intermediate track.”
CPR 45.50(1):
“For as long as the case is not allocated to the multi-track, the only costs allowed in any claim which would normally be or is allocated to the intermediate track are (a) the fixed costs in Table 14”
It is therefore clear that on detailed assessment a court has the power to determine which track a matter was likely to be allocated to when determining the relevant Fixed Recoverable Costs.
However, the Fixed Recoverable Costs are not just based on which track a matter is allocated to but also which Complexity Band the case is assigned to. Unfortunately, there does not appear to be any corresponding rule (as in CPR 46.13(3)) that expressly allows a court to impose the fixed costs for the Complexity Band a matter would have been assigned to if it settles pre-assignment.
Another drafting oversight?
No doubt the courts will decide that it is implicit in the other relevant provisions that the court has the power to notionally assign a case to a Complexity Band during the assessment process, but it would have been sensible if this had been expressly dealt with by something along the following lines:
“Where the court is assessing costs on the standard basis of a claim which concluded without being allocated to a track and/or assigned to a complexity band, it may restrict those costs to costs that would have been allowed on the track and/or complexity band to which the claim would have been allocated and/or assigned if allocation/assignment had taken place.”
