Legal ‘border dispute’ deports jurisdiction south of Hadrian’s Wall

Last week Ontime Costs won at a preliminary hearing in relation to a dispute over the court’s jurisdiction.

The case is one of many cases within the team’s current caseload where the Defendant’s representatives are arguing that the costs are not suitable for Detailed Assessment as the case falls within the Scottish Costs Predictive Fees Regime.

In this particular case the Claimant, who was a Scottish resident, slipped and injured herself in a supermarket in Scotland, but owned by a high street name headquartered in England. She instructed solicitors in England and Wales to deal with her case. Damages were agreed before pre-issue by way of Part 36 offer and acceptance. Upon receiving details of the Claimant’s costs, the Defendant offered to pay Scottish Predictive Fees. As the parties were unable to settle costs, the Claimant proceeded to issue Part 8 costs-only proceedings on the basis that there had been valid Part 36 acceptance and under CPR Part 36.10 there was a deemed order that the Claimant’s costs be subject to Detailed Assessment if not agreed.

The Defendant filed an Acknowledgement of Service disputing both the making of an order for costs and disputing the court’s jurisdiction. Before making an order the Court listed a preliminary issues hearing.

Both parties filed skeleton arguments prior to the hearing. On behalf of the Claimant, Ontime argued that, under Schedule 4 of the Civil Jurisdiction and Judgments Act 1982, the Claimant had a choice of jurisdiction: either the place where the accident (Scotland) occurred; or the place of the Defendant’s domicile (England and Wales). Furthermore, that under EU Regulation 864/20017 (“Rome II”) the applicable law for the assessment of costs (as it is a procedural matter) was the law of England and Wales.

At the hearing on Friday, the Court held that the Courts of England & Wales do have jurisdiction in this case and that the applicable law for assessment of costs is that of England & Wales. The Court made an order that the Defendant should pay the Claimant’s costs to be subject to Detailed Assessment, if not agreed under CPR Part 47. The Defendant was also ordered to pay the costs of the hearing.

Ontime have several cases where the Defendant’s representatives are presenting the same flawed argument in relation to jurisdiction and we have yet to see a case where they have succeeded in arguing that fixed costs should be applied.

This particular case is likely to proceed to a provisional assessment hearing so watch this space for a final result in relation to the assessment of costs.