The expanded fixed recoverable costs regime (FRC regime) introduced in October 2023 continues to generate difficult questions for practitioners dealing with costs disputes arising after settlement. One area of ongoing uncertainty concerns the position where substantive claims settle before proceedings are issued, but the amount of legal costs remains in dispute and must be resolved through Part 8 costs-only proceedings.

That issue was considered by the Senior Costs Judge in Executors of the Estate of Kenneth Collins v Chief Constable of Thames Valley Police [2026] EWHC 117 (SCCO). The decision provides important clarification on how the fixed recoverable costs regime applies in costs-only claims and confirms that procedural choices cannot be used to sidestep fixed costs.

The background and procedural context

The underlying claim settled pre-issue, resolving liability but leaving costs outstanding. As is common in civil litigation where settlement is achieved through offer and acceptance, the parties were unable to agree quantum. The receiving party therefore issued Part 8 proceedings for the purpose of obtaining a costs order, allowing the costs to proceed to detailed assessment.

The paying party argued that the claim fell squarely within the fixed recoverable costs (FRC) regime, on the basis that had proceedings been issued, the claim would have been allocated to either the fast track or intermediate track. The receiving party resisted that position, contending that the issuing of Part 8 costs-only proceedings, coupled with the nature of the defendant and reliance on a Part 36 offer, displaced the FRC regime.

Does issuing Part 8 costs-only proceedings affect the FRC regime?

The SCCO rejected the suggestion that issuing Part 8 costs-only proceedings alters the applicable costs framework. The court emphasised that Part 8 is a procedural mechanism, not a means of redefining the claim itself.

The correct analysis is to consider the notional allocation of the substantive claim. If proceedings had been issued, the claim would have been allocated to the fast track or intermediate track, then the FRC regime applies, regardless of the fact that proceedings were never issued and costs are pursued separately.

The judgment makes clear that allowing Part 8 proceedings to disapply FRC would undermine the purpose of the post-October 2023 reforms, which were designed to introduce certainty and control over the costs of civil claims in England and Wales.

Part 36 offers and entitlement versus assessment

The court also addressed arguments based on the acceptance of a Part 36 offer. While acceptance of such an offer confers an entitlement to costs, the SCCO reaffirmed the established distinction between entitlement and assessment.

Part 36 does not, of itself, determine the basis or scale of recovery. Where the fixed recoverable costs regime applies, the successful or winning party remains confined to fixed costs, even following Part 36 acceptance. This is a critical point for practitioners, particularly in personal injury claims and other lower-value disputes where assumptions are sometimes made that Part 36 acceptance opens the door to costs outside FRC.

Exemptions, complexity, and public authority defendants

The receiving party also relied on the involvement of a police authority and arguments of complexity to suggest that the claim fell outside the fixed recoverable costs regime. The SCCO approached those submissions cautiously, emphasising that exemptions to FRC must be construed narrowly.

The mere fact that a claim involves a public authority, or that costs are disputed post-settlement, does not render the claim “complex” for the purposes of escaping fixed recoverable costs. The court reiterated that complexity must arise from the nature of the claim itself, not from the manner in which costs are pursued or disputed.

Practical implications for costs practitioners

The decision reinforces several practical points that are likely to arise repeatedly in costs-only proceedings:

• The applicable costs regime is determined by the underlying claim, not the procedural route
• Issuing Part 8 costs-only proceedings does not avoid the FRC regime
• Part 36 affects entitlement, not the scale of recoverable costs
• Complexity arguments must be rooted in the substance of the claim
• Early assessment of notional track allocation is essential

For both receiving and paying parties, the judgment underlines the importance of realistic expectations when negotiating costs following settlement.

Greener Costs

The evolving operation of the fixed recoverable costs regime continues to present challenges in pre-issue settlements and costs-only disputes. Complex cases such as Collins demonstrate the importance of understanding how Part 8 proceedings interact with FRC and where recovery is genuinely limited by the rules.

Greener Costs regularly advises on Part 8 costs-only proceedings, FRC disputes, and post-settlement costs strategy across civil litigation. For specialist advice, contact 01204 397302 or email info@greenercosts.co.uk.