Does the small claims restricted costs regime override a contractual entitlement to costs...
Does the small claims restricted costs regime override a contractual entitlement to costs in favour of the successful party?
There is a strong case for saying that the court simply has no power to take a contractual entitlement to costs into account when applying CPR 17.14 (“The court may not order a party to pay…costs except…”) which may be usefully compared with the less prescriptive CPR 451.1 dealing with fixed costs (applying fixed costs “unless the court orders otherwise”—see Church Commissioners v Ibrahim [1997] 1 EGLR CA in which it was held that a right to indemnity costs in a tenancy agreement should displace fixed costs, but this is a pre-CPR decision).
Whether a contractual entitlement would be enforceable by a fresh claim to sweep up the difference between the indemnity costs and the small claims restricted costs ordered has not been decided.
There are respectable arguments both ways.
