Lai Ho v Adelekun [2019] EWCA Civ 1988 is the latest—alas, unsuccessful—attempt to get out of fixed costs in a personal injury claim. The Court of Appeal held, back in 2011, that it was possible in principle for parties to contract out of fixed costs. In Adelekun, the Court of Appeal considered specific circumstances in which the parties disagreed on whether they had contracted out of fixed costs under CPR 45 Section IIIA, which covers low value claims that have left the RTA or EL/PL (employers’ liability and public liability) Protocols or fall under the Package Travel Claims Protocol. On the facts, the court held that the parties had not contracted out of fixed costs, but the judgment contains salutary dicta for the future settlement of such claims.
The claim settled by way of Part 36, and the appeal turned on the wording of the offer. The defendant made the offer, using probably template wording which is common across the profession. The defendant proposed
