Fixed Costs and the indemnity principle

Nizami and another v Butt QBD LSG 2 March; NLJ 17 February

The claimants both suffered whiplash injuries when the car they were travelling in was hit by the defendant’s car. Their claims were settled, but costs could not be agreed. They commenced costs-only proceedings under CPR Part 8 claiming fixed recoverable costs under CPR rule 45.9, disbursements under rule 45.10 and a fixed success fee under rule 45.11. The defendant alleged that the claimants’ solicitors had failed to make appropriate inquiries about the availability of before-the-event insurance and sought a direction for the solicitors to certify compliance with the Conditional Fee Agreement Regulations 2000 (SI 2000 No 692). The costs judge held that the claimants’ entitlement to costs depended not on the existence of a valid and enforceable conditional fee agreement, but on their entitlement under the fixed recoverable costs rule.