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14 May 2008
Issue: 7277 / Categories: Case law , Judicial line , In Court
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Costs: contract v small claims regime

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.

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MOVERS & SHAKERS

Eversheds Sutherland—Claire Petheram

Eversheds Sutherland—Claire Petheram

Eversheds Sutherland strengthens top-ranked pensions practice with appointment of former global head of pensions

mfg Solicitors—Hannah Finnegan

mfg Solicitors—Hannah Finnegan

Law firm strengthens private client team to support continued growth

Devonshires—Andrew Cromb

Devonshires—Andrew Cromb

Devonshires expands offering with appointment of tax partner Andrew Cromb

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