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On July 31, the extended portal for RTA claims with a value up to £25000 and the new portals for employer’s liability and public liability claims were introduced and with them fixed recoverable costs for most matters which subsequently leave the portal. The levels of the fixed recoverable costs can be found at CPR 45.29C and CPR 45.29E and in this blog post.
However, unlike the portal fees which operate absolutely, fixed recoverable costs are not truly ‘fixed’ in that there is an escape provision. CPR 45.29J (1) provides:
If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs…
What, then, is an exceptional circumstance? There is no elaboration in the CPR. However, the wording is identical to the escape provision in CPR45.13 relating to fixed recoverable costs in unissued low value RTA claims.
There is no binding authority on the meaning of ‘exceptional’ in the context of CPR45.13, mainly because the value of such cases is too low to make appeals to higher courts viable. However, some indications have been given in first instance decisions. In the SCCO case of Udogaranya v Nwagw  EWHC 90186 (Costs), it was noted that the dictionary definition of ‘exceptional’ means ‘unusual or not typical’ and exceptional circumstances were found to exist in circumstances where the Defendant’s conduct had caused the Claimant significantly more work than would otherwise have been necessary.
Other cases in which ‘exceptional circumstances’ have been found include:
Cases in which no exceptional circumstances have been found include:
If the court is persuaded that exceptional circumstances exist, it will assess the costs. However, the applicant should beware: if the assessed costs are less than 20% greater than the fixed costs, then the Court will only allow the lower of assessed costs and fixed recoverable costs and may order that the applicant pay the costs of the assessment (CPR 45.29K and CPR 45.29L).