Fixed costs in the process of litigation

Fixed (or predicted or predictable) costs in litigation are specific costs, prescribed by Civil Procedure Rules (CPR) Part 45, that are recoverable by one party from another in certain circumstances in litigation (unless the court orders otherwise). Either the amount, or the method of calculation of the amount, is prescribed. 

The situations when fixed costs apply are mainly set out in CPR 45. They are essentially for straightforward legal cases, where there are no unusual factors. 

An order for fixed costs usually comprises both:

• Any applicable court fee that has been paid by the party awarded costs.
• A fixed sum for the particular circumstances set out in CPR 45.

Where there is no order for fixed costs, costs will be assessed. This means that the amount of costs will be decided by a judge in accordance with assessment principles and guidance. 

By contrast, there are also legal cases where fixed costs do not apply or where you may wish to avoid award of fixed costs. Where fixed costs do not apply (for example, in most claims for damages or for equitable relief where the claim is or is likely to be contested), you should enter the words "to be assessed" in the costs box on the relevant form. You can also put "to be assessed" if fixed costs are applicable but you do not want the court to order them. This will not guarantee that you will not be awarded fixed costs. It is possible for the court to order otherwise but it is a matter for the court's discretion.

Fixed costs amounts are low. It is therefore definitely worth asking for costs to be assessed if your legal case is not straightforward and you have incurred significant costs. In addition to indicating your desire for an assessment on the relevant form, you should raise the matter at the hearing of any application. Alternatively, ensure that it is brought to the court's attention by also mentioning it in your covering letter to the court with your claim, application, request for judgment or enforcement process.