Fixed Costs not ousted by Part 36 & Part 8 costs only proceedings will trigger FRC
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By Sean Linley, Senior Costs Draftsman
The SCCO decision of Executors of the Estate of Kenneth Collins v Chief Constable of Thames Valley Police [2026] EWHC 117 (SCCO) (23 January 2026) addresses three principles around the post October 2023 Fixed Recoverable Costs regime; chiefly:
Do Part 8 costs only proceedings trigger the post-October fixed recoverable costs regime?
Can FRC be ousted by Part 36?
The scope of the exemptions to FRC to Police claims under CPR 26.9(10).
Practice Points
There are some key practice points for Practitioners:
Part 36 offer and acceptance will not equate to contracting out of Fixed Recoverable Costs. Parties wanting to expressly contract out will need an order or written agreement that can subsequently be conferred into a Part 8 costs only order.
Part 8 costs only proceedings trigger the transitional provisions for the post-October 2023 Fixed Costs rules. This bites on non-PI cases with the post October FRC regime triggered where proceedings are issued on or after 1 October 2023. Where Part 8 costs only proceedings are issued in such cases they will be treated as the commencement of proceedings for the purpose of the transitional provisions and would therefore fall under the post October 2023 fixed costs rules.
CPR 26.9(10) prescribes that claims against the Police which include a claim for intentional or reckless tort must be allocated to the Multi-Track. For the purpose of the exemptions to the post October 2023 FRC the court held that this meant for claims involving the Police, the claim simply needs to include a claim for intentional tort as opposed to only be a claim for intentional tort. As the SCCO put it “the action, in other words, must simply include a claim for intentional tort”. If it does then it must be allocated to the Multi-Track and consequently falls outside the scope of Fixed Recoverable Costs.
Whilst the Claimant was unsuccessful on Points 1 and 2, as it was held the claim was an exempted claim for the purpose of the post October FRC regime then the Defendant was ultimately ordered to pay the Claimant’s costs on a time basis, to be subject to detailed assessment if not agreed.
Does Part 8 Costs only proceedings trigger the post-October FRC regime?
A long running dispute has been around the interpretation of the transitional provisions for the post October 2023 FRC regime. In short, for non-PI claims the October 2023 changes apply where a claim is issued on or after 1 October 2023.
The Claimant here sought to argue that there was a distinction between issuing substantive proceedings and costs only proceedings. Costs Judge Whalan dismissed this argument:
“34. I am satisfied that the Claimant's Part 8 costs-only proceedings issued on 31st December 2024 triggered the application of the FRC regime to this claim. I reject Mr Waszak's submission that FRCs do not apply to this non-PI action, settled prior to 1st October 2023 without proceedings being issued. It is clear to me, on an ordinary reading of the transitional provisions in the 2023 Rules, that 'claim' includes Part 8 costs-only proceedings issued to obtain a costs order. No material distinction should be drawn between the substantive claim and costs only proceedings. There is instead a single, continuing claim, which subsists until all elements have been concluded. Costs-only proceedings accordingly comprise a claim for the purpose of the Rules. The Rules invoked procedural changes designed to implement an extension of the fixed recoverable costs regime. I am satisfied that such procedural matters do not violate the general principle of legal policy that changes in law should not take effect retrospectively. This court is not in any way bound by the decisions in Asmat Bi v. Tesco Underwriting Limited (ibid) and Bek v. Simsek (ibid), but it is reassuring nonetheless to see different judges, sitting in different courts reach the same conclusion, albeit in the context of different types of claim. I should not and do not place any reliance on the CPRC Minutes for 3rd November 2023. I do not find this outcome to be in any way unfair or 'absurd', as submitted by Mr Waszak. The transitional provisions implemented a relatively simple scheme which, inter alia, imposes a 'bright line' demarcation between FRCs and the previous regime. These changes were publicised well in advance and on the facts of this case the Claimant had eight months to issue costs-only proceedings prior to the 1st October 2023 commencement date. On this issue, for all these reasons, I prefer the submissions of the Defendant to those of the Claimant, so that the FRCs regime would have applied, but for my conclusions set out at paragraph 20 above.”
Does a Part 36 agreement equate to contracting out of Fixed Costs?
The Claimant had sought to argue that the Part 36 offer and acceptance amounted to an express and effective contracting out. The Claimant’s position was a reliance on 36.13 and that the Defendant’s Part 36 offer had referred to this provision. The Claimant argued that 36.13 directed that costs are to be paid on the standard basis if not agreed.
The Court rejected this, accepting the submissions of the Defendant. The court stated:
“37. Offer and acceptance pursuant to Part 36 cannot, in my conclusion, be construed as an effective 'contracting out' of FRCs. Quite apart from the fact that it invokes a procedural and not a contractual process, it is clear that the entitlement to costs conferred by 36.13 is simply a right to have those costs determined by the Rules. Thus, the wording of 36.13(3) includes the proviso: 'Except where the recoverable costs are fixed by these Rules, …'. Insofar as the Claimant's entitlement to costs could be otherwise fixed by the Rules to comprise FRCs, therefore, a Part 36 agreement cannot possibly be construed as a contracting out of this consequence.”
Parties who wish to contract out cannot settle their claim on the basis of Part 36. This is consistent with the approach in Ho v Adelekun [2019] EWCA Civ 1988 (19 November 2019).
Contracting out by way of order was addressed in the Court of Appeal decision of Doyle, our report on that case can be found here.
Exemptions to Post October 2023 FRC reforms - Claims against the Police
The saving grace for the Claimant was that the Court accepted that the claim was exempt from Fixed Recoverable Costs in any event.
Costs Judge Whalan noted the exemptions under CPR r26.9(10)(e) for claims involving the Police. These stipulate that:
(e)a claim against the police which includes a claim for—
(i)an intentional or reckless tort; or
(ii)relief or a remedy in relation to a breach of the Human Rights Act 1998(5); […]
Must be allocated to the Multi-Track and by extension would be exempt from FRC.
Here the Claimant had brought a claim against the Police for negligence and/or wrongful interference in respect of guns which had been seized and destroyed by the Police. An earlier criminal decision had seen a destruction order made for some but not all of the Claimant’s guns. The Police, however, had seized and destroyed all of the Claimant’s guns.
The Claimant submitted that the claim came under the exemption at CPR r26.9(10)(e), It was submitted that the decision to destroy the Claimant’s guns fell under the ambit of ‘intentional tort’ as it was a deliberate action.
The Defendant sought to argue that the claim only existed in negligence and that the Letter of Claim had only sought to bring a claim in the tort of negligence.
The SCCO concluded thus:
“19. I am satisfied, on the particular facts of this case, that the substantive action fell within the provisions of CPR 26.9(10)(e)(i), with the effective result that FRCs do not apply. The action intimated by Mr Collins, comprising a claim against the police, included a claim for an intentional tort. Mandatory allocation to the multi-track would have ensued and FRCs could not have applied. The provisions of sub-paragraph 26.9(10)(e)(i) are not exclusive but inclusive. The action, in other words, must simply include a claim for an intentional tort. It need not be exclusively or primarily characterised by such a cause of action. The reference in the Letter of Claim to 'wrongful interference with goods' suggests clearly – and, in my view, sensibly and inevitably – an alternative claim in conversion and/or trespass to chattels. The unfortunate destruction of Mr Collins's firearms and ammunition was self-evidently the consequence of an intentional act on the part of the Defendant. Really, the facts of this case indicate irresistibly a claim in conversion and/or trespass, whatever the merits (or otherwise) of a concomitant claim in negligence. Ultimately, I am left in no real doubt that on this issue the submissions of the Claimant should be preferred to those of the Defendant.”
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