Police Claims, Intentional Torts & The FRC Transitional Trap: Estate of Kenneth Collins v Chief Constable of Thames Valley Police [2026] EWHC 117 (SCCO)

Detailed Assessment — 2026-01-29

A significant SCCO decision clarifying when claims against the police are excluded from FRCs. The judgment confirms that wrongful interference with goods is an intentional tort, but warns that issuing Part 8 costs proceedings post-October 2023 can trigger FRCs retrospectively.

Overview

Date: 23 January 2026

Judge: Costs Judge Whalan

Nature of Proceedings: Preliminary issue on costs-only proceedings under CPR Part 8

Key Issues:

Whether fixed recoverable costs (FRCs) applied or whether the claim was entitled to standard basis assessment
Whether claims against the police involving intentional torts are excluded from the FRC regime under CPR 26.9(10)(e)
Whether Part 8 costs-only proceedings issued after 1 October 2023 trigger the extended FRC regime for pre-existing claims
Whether acceptance of a Part 36 offer constitutes "contracting out" of FRCs

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The Facts

Kenneth Collins was arrested in July 2015 on suspicion of theft. During a search of his property, Thames Valley Police seized thirteen firearms and ammunition. Following his conviction on 27 February 2017 for common assault, criminal damage, and unlawful possession of a shotgun, Collins's shotgun certificates were revoked and a destruction order was made in respect of some — but not all — of the seized items.

Collins and his partner, Ms Lesley Morgan, requested the return of the remaining firearms. The police refused. On 6 November 2018, Collins was informed that the guns had been destroyed. He instructed solicitors on approximately 12 July 2019 to pursue claims in negligence and wrongful interference with goods, quantifying his losses at approximately £228,000. The police admitted liability on 28 October 2020.

Collins died on 15 April 2022, and probate was issued on 5 August 2024. A Part 36 offer of £32,500 had been made on 17 January 2023 and was accepted by the Claimant on 1 February 2023. Costs remained in dispute. On 31 December 2024, the Claimant's executors issued Part 8 costs-only proceedings. The court was required to determine, as a preliminary issue, whether the Claimant was entitled to standard basis costs assessment or whether fixed recoverable costs applied.

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Issue 1: The CPR 26.9(10)(e) Exclusion

The most significant issue was whether the claim fell within CPR 26.9(10)(e)(i), which mandates multi-track allocation for claims against the police that include intentional or reckless torts. Claims allocated to the multi-track are excluded from the FRC regime.

The Claimant, represented by Matthew Waszak of Brabners LLP, argued that the reference to "wrongful interference with goods" in the original letter of claim necessarily indicated claims in conversion and trespass — torts requiring intentional conduct rather than mere negligence. The Defendant, represented by Andrew Hogan of Kennedys Law LLP, resisted this characterisation.

Costs Judge Whalan found in the Claimant's favour. The destruction of the firearms was "self-evidently the consequence of an intentional act." The CPR provision uses inclusive language requiring only that a claim "include" an intentional tort; it need not be the exclusive or primary basis. The facts indicated "irresistibly a claim in conversion and/or trespass." Mandatory multi-track allocation would therefore have followed, excluding FRCs entirely.

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Issue 2: The Transitional Provisions

The court also considered, in the alternative, whether the transitional provisions in the Civil Procedure (Amendment No. 2) Rules 2023 would have brought the claim within the extended FRC regime. These provisions apply to claims where "proceedings are issued on or after 1st October 2023."

The Claimant argued that "proceedings" in this context referred only to substantive claims, not subsequent Part 8 costs-only proceedings. The underlying claim settled in February 2023 — before the 1 October 2023 cut-off date — and therefore the extended FRC regime should not apply.

Costs Judge Whalan rejected this distinction. He found that a "single, continuing claim" subsists until all elements, including costs, are concluded. The Part 8 costs-only proceedings issued on 31 December 2024 constituted "proceedings" triggering the 2023 Rules' application. The judge found this did not engage retrospectivity concerns, noting that the Claimant had eight months between the settlement and 1 October 2023 in which to issue costs-only proceedings under the old rules.

The judge found support in the decisions of Asmat Bi v Tesco Underwriting Limited (Manchester 2024) and Bek v Simsek (Liverpool 2025), where similar reasoning applied FRCs to post-1 October costs proceedings despite earlier settlements.

This means that, absent the CPR 26.9(10)(e) exclusion, FRCs would have applied.

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Issue 3: Part 36 and "Contracting Out"

The final issue was whether acceptance of the Part 36 offer constituted an agreement to disapply FRCs. CPR 45.1(3) permits parties to agree that FRCs should not apply. The Claimant argued that acceptance of the standard Part 36 form (N242A), which includes the provision that "the Defendant will be liable for the Claimant's costs in accordance with rule 36.13," amounted to an express agreement that costs should be assessed on the standard basis.

Costs Judge Whalan emphatically rejected this argument. CPR Part 36 establishes "a self-contained procedural code" and offer/acceptance constitutes a procedural entitlement, not a contractual arrangement. Critically, CPR 36.13(3) itself states:

> "Except where the recoverable costs are fixed by these Rules..."

This language demonstrates that Part 36 agreements cannot override fixed costs regimes established by the Rules themselves. The Part 36 settlement could not therefore constitute contracting out of FRCs.

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Key Takeaways

For Solicitors

1. Claims against police involving destroyed property will likely escape FRCs — Where a claim against the police includes any element of intentional interference with goods (conversion, trespass), CPR 26.9(10)(e) mandates multi-track allocation and thereby excludes FRCs. The intentional tort need not be the primary claim.

2. Issue costs-only proceedings promptly — The transitional provisions bite on the date proceedings are issued, not the date the underlying claim settles. Practitioners with claims settled before 1 October 2023 who delayed issuing costs-only proceedings may find themselves caught by the extended FRC regime.

3. Part 36 acceptance does not disapply FRCs — Accepting a Part 36 offer on the standard form does not constitute "contracting out" of fixed recoverable costs under CPR 45.1(3). The self-contained nature of Part 36 means its costs consequences are always subject to the fixed costs rules.

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Conclusion

Collins v Chief Constable of Thames Valley Police is an important decision on the scope of the extended FRC regime, particularly in the context of claims against the police. The primary holding — that wrongful destruction of property by police engages the intentional tort exclusion in CPR 26.9(10)(e) — provides welcome clarity for practitioners handling such claims. The inclusive language of the provision means that even a subsidiary intentional tort claim will trigger mandatory multi-track allocation and thereby exclude FRCs.

The secondary holding on transitional provisions is equally significant. Practitioners should take note that costs-only proceedings issued after 1 October 2023 will be treated as "proceedings" for the purposes of the transitional rules, regardless of when the underlying claim was settled. This creates a clear incentive to issue costs-only proceedings promptly after settlement, rather than allowing costs disputes to drift. The eight-month window the Claimant had in this case was treated as a sufficient opportunity to have acted under the old regime.

The rejection of the Part 36 contracting-out argument closes a potential route by which parties might have sought to circumvent the FRC regime. The court's characterisation of Part 36 as a "self-contained procedural code" rather than a contractual mechanism means that standard-form acceptances cannot be relied upon to disapply fixed costs.

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Citation: Executors of the Estate of Kenneth Collins v Chief Constable of Thames Valley Police [2026] EWHC 117 (SCCO)

Full judgment available at: BAILII

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