All busy litigation practitioners might do well to heed the recent decisions made by learned Costs Judge Whalan (Judgment handed down 23rd January 2026) in The Estate of Kenneth Collins v. The Chief Constable of Thames Valley Police [2026] EWHC 117 (SCCO).
- The brief facts:
In July 2015 one Kenneth Collins (KC) was arrested by Officers from Thames Valley Police (D) on suspicion of stealing a mobile phone from a taxi-driver. At the time of his arrest KC’s home was searched. Thirteen guns were found along with a large quantity of ammunition. These were seized by D.
On 27th February 2017 KC was convicted of common assault and criminal damage along with unlawful possession of a shotgun and ammunition. At sentencing the Court made a Destruction Order: this applied to some (but not all) of the guns and ammunition in D’s possession. Although KC applied for the exempt guns be returned to him, his requests were refused and all of the guns and ammunition were subsequently destroyed by D.
KC commenced a protocol claim for negligence for wrongful interference against D in relation to the wrongfully destroyed guns. (This is now termed “the Estate’s Claim”). Tis losses were quantified at about £228,000.00.
D effectively admitted liability in principle.
KC died on 15th April 2022, and Probate was issued in respect of his Estate on 5th August 2024. The claims were continued by KC’s partner Ms. Lesley Morgan.
- Part 36 compromise:
The regime under Part 36 of the Civil Procedure Rules is a rigorous code for the resolution of disputes. It regulates the making of offers (under Part 36) whether before or after legal proceedings have started. Part 36 is a strict codified regime for compromise. Acceptance (or rejection) of a Part 36 proposal will entail clearly defined and potentially draconian costs consequences.
(It is not part of this paper to address the workings of the Part 36 regime in detail but rather to mention that acceptance within 21 days of a Part 36 offer ordinarily entitles the party making the offer – the Offeror – to assessment of their costs and ordinarily on the standard basis).
On 17th January 2023 D made a Part 36 proposal to settle at £32,500.00 (“the Part 36 Offer”). The Offer was made in the Standard Court Form N242A.
It contained the usual provision that if the Offer was accepted within 21 days D would be liable for the Estate’s costs in keeping with CPR 36.13.
On 1st February 2023 the Estate accepted.
However, the level of the Estate’s costs could not be agreed.
On 31st December 2024 the Estate issued costs-only proceedings under Part 8 of the CPR.
This is a means of quantifying the successful party’s costs, where their main claims have settled, but the amount of the losing party’s costs contribution cannot be agreed. Instead those costs are assessed by the Court.
- Standard Basis or Fixed Costs Regime? (FCR):
The discrete question for the Court was whether the Estate’s costs ought to be assessed on the Standard Basis or whether those costs should be confined to Fixed Recoverable Costs (FRC), a far less generous footing.
- The Issues:
Both sides were agreed that the answer to this question was dependent in turn upon the resolution of three distinct issues (all cast in the alternative):
- Was the FRC regime excluded given that the Estate’s claim fell within the scope of CPR 26.9(10)(e)? (This particular sub-section effectively disapplied the Application of the FRC to claims founded upon an intentional tort).
- Was it correct to contend that FRC did not in any event apply – as the Estate’s claim had been a non-personal injury claim which had settled without proceedings being issued. This category of claim was expressly exempted from the FRC under the Transitional Provisions set out in the Civil Procedure (Amendment No. 2) Rules 2023.
- Had the FRC regime been ousted by the express terms of the Part 36 compromise?
- Torts: Interference with goods:
By way of preface, over the centuries, the law relating to the protection of interests in chattels had been saddled with a mixed heritage of differing and overlapping legal decisions. Those decisions in turn were founded upon an interplay of principles of property law, tort and contract – quite apart from the need to quantify claims for damages arising from loss or destruction of goods.
It followed that English Law has never developed a single tort of wrongful interference with goods.
It also followed that a Defendant accused of wrongful interference with another’s chattels might be liable for any of three torts: conversion, trespass to chattels and the tort known as “reversionary injury”.
Indeed, prior to 1978 he might also be guilty of a fourth: detinue.
The latter was abolished by the Torts (Interference with Goods) Act 1977 (“the 1977 Act”).
- Exemption: intentional tort:
In relation to 4(1) the Court found that the provisions of CPR 26.09(10)(e)(i) did apply.
In order to succeed in its claims against D, the Estate would have needed to show the requisite intent.
The Court held that the destruction of the KC’s firearms and ammunition had been self-evidently the consequence of an intentional act on the part of D.
The Estate’s claims were such as to take themselves outside of the restrictions imposed by the FRC.
The Court decided that the Estate’s costs should be assessed upon the Standard Basis; this is now termed: The Exemption.
- Was the FRC regime caught by the Transitional Provisions?
On the facts, on issue 4(2) the Court found that this was so; it decided that the Estate’s costs-only proceedings (issued 31st December 2024 under Part 8 of the CPR) had triggered the FRC regime.
On a straightforward reading of those provisions, the FRC regime extended not only to a substantive claim made in the main action – but any Part 8 Costs-Only proceedings thereafter.
No material distinction should be drawn between a cause of action and the costs consequences of its resolution.
Accordingly, but for The Exemption, the Estate would have been confined to Fixed Costs only.
- Part 36 compromise: possible ouster of FRC?
In relation to the third contention at 4(3), the Estate argued that the very terms of the Part 36 compromise should be treated as taking the matters outside of the FRC regime.
Put shortly, it was contended that the acceptance of D’s Part 36 Proposal on the 1st February 2023 amounted to an express and effective “contracting out” for the purposes of the FRC.
This it was said was because the acceptance incorporated the standard proviso within Form N242A.
This proviso stated that if a Part 36 Offer was accepted within the relevant period (21 days):
“The Defendant will be liable for the Claimant’s costs in accordance with Rule 36.13”.
CPR 36.13(3) provides for such costs “to be assessed on the Standard Basis, if not agreed”.
The Court was clear in its finding. Offer and acceptance under Part 36 could not be construed as somehow contracting out of the FRC regime.
In summary, the foundations of Part 36 rest upon a procedural constitution – and are not rooted in contractual considerations.
The entitlement to costs conferred by CPR 36.13 is simply a right to have those costs decided under the Rules.
Indeed CPR 36.13(3) includes the proviso “except where the recoverable costs are fixed by these Rules”.
It followed that – but for The Exemption – the Estate would have been restricted to Fixed Costs under the Part 36 compromise.
- Summary:
In whole or in part – the Court’s findings (and the reasoning underpinning each of the three strands) comprise a most helpful Judgment which has served to clarify important questions relating to Part 36 and the application of the FRC.
Richard Peter Tymkiw
Head of Litigation
KIDD RAPINET LLP
06.03.2026
Richard Peter Tymkiw LLB (Hons) 