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Costs
Fixed costs
The fixed costs rule in relation to possession and demotion claims is now set out in CPR Part 45.1 and 45.4A..
Unless the court otherwise orders the amount to be allowed in respect of solicitors charges is fixed where: the claim is for the recovery of land, including a possession claim under Part 55, whether or not the claim includes a claim for a sum of money and the defendant gives up possession, pays the amount claimed, if any, and the fixed commencement costs stated in the claim form;
the claim is for the recovery of land, including a possession claim under Part 55, where one of the grounds for possession is arrears of rent, for which the court gave a fixed date for the hearing when it issued the claim and judgment is given for the possession of land (whether or not the order for possession is suspended on terms) and the defendant has neither delivered a defence, or counterclaim, nor otherwise denied liability; or
has delivered a defence which is limited to specifying his proposals for the payment of arrears of rent; the claim is a demotion claim under Section III of Part 65 or a demotion claim is made in the same claim form in which a claim for possession is made under Part 55 and that demotion claim is successful. Where the claimant obtains judgment the amount to be included in the judgment for the claimant's solicitor's charges is the total of the fixed commencement costs and the sum of £57.25. In addition the claimant is entitled to the court fee (45.2(3))
Possible exceptions
The circumstances in which the court might otherwise order (ie award costs greater than fixed costs) is not specified. Examples might include:Where there has been one or more adjournments at the request of the defendant;
Where there is a complication in the case, or
Where the tenancy agreement makes specific provision as to costs.
Unless the court otherwise orders
Where the tenancy agreement makes specific provision as to costs the landlord is “not to be deprived of his contractual rights to costs where he has claimed them unless there is a good reason to do so and that applies both to the making of a costs order in his favour and to the extent that costs are to be paid to him” – even in a “straightforward possession action” (Church Commissioners for England v Ibrahim [1997] 1 EGLR 13, at 14H, per Roch LJ).
Where a landlord is relying upon a contractual term it will be for the tenant to show that the individual items were unreasonably incurred or unreasonable in amount (CPR 48.3; PD 48, section 50).
If you think you want to obtain greater costs than fixed costs you should prepare a costs schedule.
Query: Will the Unfair Contract Terms Regulations prevent a landlord from recovering more than fixed costs? It will no doubt depend upon the precise wording of the clause but the OFT considers the following wording to be suitable: "To pay, unless a court orders otherwise, the landlord's reasonable legal costs and expenses (including VAT) properly incurred in enforcing this agreement." (See Group 5 on p85 of the OFT document "Guidance on unfair terms in tenancy agreements" (oft 356).
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