Cutting costs when costs are fixed

• The quest to escape limitations on costs recovery has produced an abundance of case law.

Since the expansion of the various fixed costs regimes in 2013, the quest of receiving parties to escape limitations on costs recovery has produced an abundance of case law, particularly in the lower courts.

One often cited is the decision of regional costs judge Besford in the case of Sutherland v Khan (2016). In that case it was successfully argued that a defendant accepting a Pt 36 offer out of time would be liable to pay the claimant's standard basis costs from the date of its expiry, unconstrained by the fixed costs regime.

Whalley v Advantage Insurance

For a time, Sutherland v Khan proved to be a useful avenue for claimants, until DJ Besford was asked to revisit the issue in the recent case of Whalley v Advantage Insurance [2017]. The case involved a road traffic accident