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12 November 2009 / Julia Mowbray
Issue: 7393 / Categories: Features , Costs , LexisPSL
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A tall order?

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Julia Mowbray explains why costs capping is exceptional

The Civil Procedure Rules Committee consciously adopted a conservative approach to costs capping orders in CPR 44.18, which came into force in April 2009. The decision in Derek Barr & Others v Biffa Waste Services [2009] EWHC 2444 (TCC), All ER (D) 176 (Oct) underlines that the making of costs capping orders will indeed be exceptional.

Pursuant to a group litigation order (GLO) 163 householders sued Biffa Waste Services (Biffa) regarding a landfill site. Biffa sought an order limiting the claimants’ recoverable costs to £1m, the level of cover under the claimants’ after the event insurance (ATE) policy. The claimants’ solicitors were working under a CFA with a 100% uplift.

Coulson J summarised the law on costs capping orders as follows:

A party seeking a costs capping order will need to demonstrate that both CPR 44.18(5) and CPR 44.18(6) are met. CPR 44.18(5) provides that the court may make an order if:
(a) it is in the

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