The claimant found himself limited to fixed costs due to his solicitor’s failure to spot the devil in the detail of an offer made by the defendant. A costly error with profit costs being limited to £21,160 against the claim for £51,000.

McGreevy v Kiramba – Master Leonard- Senior Courts Costs Office 26 September 2022


Parties can, and indeed did contract to specific costs consequences on settlement. In this particular case, it was found that the claimant had accepted the defendant’s narrow offer to accept fixed costs provided for in CPR45.29C. Having accepted such a narrow term it was not then open for him to invoke other aspects of the fixed costs rules, particularly the exceptionality escape hatch at CPR 45.29J.

Whilst not necessary having reached the conclusion outlined above, it was also concluded that a similar restriction applies to cases where costs are payable under CPR 36.20 (2) – a claimant is limited to the fixed costs and again cannot use the exceptionality escape hatch.

Finally, the Master dismissed the claimant’s case that the case was exceptional in any event, reaffirming that the exceptional escape hatch does indeed involve a high bar.


The claimant was injured when the defendant’s car struck a stationary vehicle. The claimant submitted a Claim Notification Form and liability was admitted whilst the claim remained in the ‘portal’. Notice was given to the defendant that the case was no longer suitable for the portal on account of the value of the claim being said to be £50,000. Following the issue of the proceedings notice of the proposed allocation to the multi-track was given, but the case was never allocated to a track.

With a view to securing a settlement, on 16 June, the defendant made a time-limited Calderbank offer in the sum of £100,000, with the claimant’s costs to be paid in accordance with CPR 45.29C. The claimant responded on 25 June to accept the Calderbank offer.

To avoid the formality and cost of filing a consent order, on 1 July, a Part 36 Offer was made to the claimant for the sum of £100,000 with fixed costs to be paid in addition. Whilst the judge does not refer to the email from Horwich Farrelly dated 1st July 2021 under cover of which that Part 36 offer was served, that email makes it clear that it was intended simply to formalise the concluded agreement reached between the parties strictly for procedural purposes.

The claimant confirmed it could be accepted, but costs were sought on an hourly rate basis. The defendant maintained that the Calderbank offer had been accepted and the parties were bound by those terms. The parties were unable to reach an agreement on the costs position. A consent order recording the settlement sum and requiring the Court to determine whether the claimant’s costs and disbursements were payable pursuant to CPR 45.29C or on a standard basis, to be assessed if not agreed upon, was made.

The underlying claim was dealt with by Marlene Scanlan, LACIG Lawyer and costs proceedings conducted by Ilze Kristapa and Daniel Wilkinson, all of HF, on behalf of 1st Central Insurance Management Ltd.


The court proceeded to determine the following issues:

How did the case settle?

The claimant’s case was that the parties were not of one mind when it came to the defendant’s Calderbank offer and as such there could be no binding compromise at that point. The Master firmly dismissed this point finding that a proper construction of the communications between the parties on 16 June (the offer) and 25 June (the acceptable) entirely supported the conclusion that the parties had reached a concluded agreement on 25 June. The acceptance was considered “a clear and unqualified acceptance of the defendant’s offer”.

What costs did the claimant agree to accept

The defendant’s offer was clear and specific – it expressly provided that if accepted the claimant’s costs would be payable pursuant to CPR 45.29C. This offer was accepted without qualification.  It was therefore concluded that the claimant did indeed agree to accept costs limited in accordance with CPR 45.29C, table 6B. CPR 45.29C makes no reference to the wider fixed costs rules and it was not open to the claimant to invoke CPR 45.29J and seek costs in excess of the fixed costs tables.

Did the claimant accept the defendant’s Part 36 offer of 1 July?

No. The defendant had clearly offered to pay fixed costs and the claimant’s ‘acceptance’ had been to accept costs on an hourly rate basis.

Can a claimant seek costs over and above fixed costs in a claim to which CPR 36.20 (2) applies?

No. CPR 36.20 (2) expressly references the fixed costs tables and makes no provision for the application of the other fixed costs rules.

Was this case exceptional?

Had it been applicable it would have been open to the claimant to seek costs in excess of the fixed costs under CPR 45.29J on the basis that the claim was exceptional. The test for whether a case is exceptional requires the claimant to clear a very high bar (as confirmed in HF’s Ferri v Gill [2019] EWHC 952). The claimant’s case in the present claim was limited and largely reliant on the fact that all parties agreed the case was suitable for the Multi-Track. Master Leonard concluded that the high bar was not met in this case and it was not therefore exceptional.


The judgment is welcome confirmation that when costs are fixed they are indeed fixed.  That certainty is valuable to all involved in litigation and the bar for exceptionality should not be lowered.

This case again highlights the importance of ensuring the settlement terms are correct and that you are going to get what you bargained for. As is often the case the devil is in the detail and a failure to properly consider the exact wording of any offer or acceptance can lead to significant losses.

The case also highlights the ongoing problems with the current fixed costs rules. The issue addressed, in this case, is regarding the application of COPR 45.29J in cases to which CPR 36.20 (2) is one without authoritative guidance. This is despite these rules have been in place since April 2013.

The rules for the fixed costs’ extension are currently being worked on and it is frustrating that a complete redraft of Part 45 is not being undertaken. The fact that satellite litigation continues on aspects of the rules nearly 10 years after implementation highlights the need for a root and branch review of this rule set and how it interacts with the remainder of the Civil Procedure Rules.