Sarah successfully argued premature issue and breach of the personal injury pre-action protocol/practice direction on pre-action conduct in thi non- MOJ Portal disposal case.  The claimant served a medical report pre-issue detailing one set of injuries/loss of amenity, but shortly before trial served a witness statement extending some of the symptoms, an extending the loss of amenity, thereby putting the defendant's part 36 offer at risk.  In a reserved judgment, the judge held this was a clear breach of the personal injury pre-action protocol as well as not in compliance with the Practice Direction on pre-action conduct.  He found that this was premature issue because the claimant's solicitors had not taken adequate instructions pre-issue, and they had not provided the defendant with sufficient information to enable the defendant to make a protective offer.  The claimant was restricted to predictive costs and was ordered to pay all the defendant's costs.

 

For a copy of the full reserved judgment please email Sarah.

 

 

Sarah successfully argued in Patel v Fortis that technical non-compliance with the MOJ Portal Protocol was not sufficient grounds for a claimant to remove a case from the Portal and recover Part 7 costs.  This was an important test case as there was no other MOJ Portal case law on this or any similar points, and the rules were silent as to the effect of non-compliance.

 

The defendants had used the A2A system to access the Portal, which, in conjunction with CRIF the Portal developers, had been designed without the ability to send acknowledgments of CNFs (Claim Notification Forms) contrary to paragraph 6.10 of the Portal Protocol.  However, the defendant had responded within 48 hours with the Full Insurer Response, accepting the claim and admitting liability. The claimant decided to remove the matter from the Portal on the same day they received the Full Insurer Response. 

 

In a reserved judgment, the court held that removing a matter from the Portal for non-compliance with paragraph 6.10 was not a recognised ground for bringing the process under the RTA Protocol to an end.  This ran directly contrary to the letter and spirit of the Portal Protocol and was exactly the sort of conduct that should be classed as 'unreasonable.'  The court also warned that removing a matter from the Portal was drastic; parties should not do it lightly and should certainly not do it on non-justified technical grounds as were found in this case.  The court also held that once a party has communicated their decision not to continue with the Portal process then it ceases to 'continue' and parties are not at liberty to resume the process, even if Part 7 proceedings had not commenced and even if still physically in the Portal.

 

The claimant was restricted to Portal costs only per CPR 45.36, against a Part 7 cost schedule which claimed costs of over £16,000.  Further the defendant was awarded some of their costs of defending the claim, to reflect the costs they had incurred which they would not have done had the claimant not removed the matter from the Portal.

 

Please email Sarah for a full copy of the judgment.

 

Instructed by Louisa Martindale of Berrymans Lace Mawer LLP Liverpool.

Sarah was defending in this personal injury disposal case in front of HHJ Harrington.  C sought to recover £50 miscellaneous expenses.  However, the court accepted Sarah's submissions that the claim for miscellaneous expenses should be disallowed in its entirety, confirming the lower judge's decision on this point in Ghattaorya v Bailey (below).  The judge added that it was 'only common sense that sums should be particularised and that as the round figures referred to in the witness statements were fairly general, such an award should not be made.' 

This is an important decision for defendants - particularly when defending close part 36 offers, as reducing special damages can be the key to success.

 

Instructed by Judith Hartley (now Judith Hall) of Ashton Morton Slack (now Horwich Farrelly LLP Sheffield.)

Sarah was defending in this personal injury disposal case.  Whilst the defendant had beaten their pre-issue part 36 offer, she also argued the claimant should not get all their predictive costs because of their failure to follow the pre-action protocol.  (Pre-issue, the claimant had only made 2 highly unrealistic offers which was not ‘negotiation’ as required by the protocol, further C had failed to supply evidence in support of some of the specials. Jamil v Harling (2007) LTLPI 18/3/2008 considered.)  The judge agreed and reduced the claimant's costs to 2/3rds of the profit costs allowable under the predictive fees regime, plus the medical disbursements.  The defendant was also awarded interest on their costs at 8%.

 

This decision shows that where there is a breach of the pre-action protocol, the judge has a wide range of cost sanctions available even where a defendant has beaten their offer and the starting position in practice is for C to get predictive costs.

Instructed by Graham Isaacs of Berrymans Lace Mawer LLP Manchester (now of Hill Dickinson LLP.)

Sarah was again defending in this personal injury disposal case.  The claimant claimed for a 24 - 38 month neck and lumbar spine whiplash injury, with a 2 years travel anxiety.  However, the court found the evidence of the claimant to be extremely unsatisfactory.  The court awarded for a 6-months neck injury, disallowing the claim for the lumbar spine and all specials relating to the lumbar spine.  The court also disallowed the claim for miscellaneous expenses in its entirety, noting that the cost of telephone calls was relatively low nowadays.  The judge commented that claiming for miscellaneous expenses was a bad habit claimant solicitors had got into.

 

Instructed by Patrick McCarthy of Horwich Farrelly Solicitors, Manchester.

 

 

In a personal injury disposal case, Sarah successfully argued that the winning claimant should not be entitled to any costs.   

 

The claimant suffered a 4 month cervical spine whiplash injury. Prior to the issue of proceedings, the claimant had made a global Pt 36 offer in the sum of £2,362.35 and the defendant had made a global Pt 36 offer in the sum of £1,900.  The defendant beat her offer.  Sarah successfully argued that the claimant’s single pre-issue offer was highly unrealistic (approx £2,000 for generals for a bare 4-month whiplash) and therefore the claimant had failed to comply with the pre-action protocol by not entering into any genuine negotiations.  She further contended that to further the over-riding objective, the court had to disallow all the claimant’s costs because to allow even predictive costs would give the claimant what they would have received had the protocol been complied with.

The judge held that the claimant’s offer was wholly unrealistic and they had not complied with the rules and pre-action protocol wholeheartedly.  The claimant could not recover her costs for up to 21 days after D’s offer, which would normally apply, nor even predictive costs, but only the medical report disbursement.  This was because of the claimant’s unrealistic stance pre-issue on a bare four-month whiplash and her failure to comply with the protocol.  Also, her costs schedule was, on any view, inflated.  

 

Yvonne Hazel Painting v University of Oxford (2005) [2005] EWCA Civ 161, Haywood v Haywood (2006) LTLPI 2/6/2006, Smith v Chantelle Irving (2006) LTLPI 26/2/2007, Mark Chatburn v Spicer (2007) LTLPI 19/6/2007 and Jamil v Harling (2007) LTLPI 18/3/2008 considered.

 

Instructed by Graham Isaacs, Berrymans Lace Mawer Solicitors, Manchester (now of Hill Dickinson LLP.)

 

On judicial review Sarah successfully argued in the RCJ that the Magistrates’ Court had erred in setting aside liability orders which had been made 2½ - 5½ years earlier. The lower court should have had regard to the principle of finality of litigation; if a defendant's case was a liability order should be set aside and the delay in applying was because he had only very recently learnt of its existence, the court had to investigate how long that notice was. It was insufficient to say it would be in the interests of justice to set aside a liability order.

 

Postscript:  The matter was re-listed by the Magistrates in July 2009.  The Magistrates Court found that Mr Dublin had failed to make his application sufficiently promptly from when he had knowledge of the liability orders.

 

Instructed by Robert Taylor, Barclay Taylor Solicitors, London.

Sarah successfully resisted an application by the claimant to accept the defendant’s payment in out of time, whilst still retaining Pt 36 costs protection. Also the claimant advanced a head of claim for which there was no evidence. The judge held the solicitors for the claimant should have come off the record once it became apparent they could not support this head of claim. Sarah successfully argued the claimant should not recover any costs because of their poor conduct. The court ordered the claimant was not entitled to any costsor disbursements, not even up to 21 days before the defendant’s payment in, and the claimant had to pay all the defendant’s costs.

 

Instructed by Philip Dearden, Ashton Morton Slack, Sheffield (Now part of Horwich Farrelly.)

Sarah successfully argued no costs should be awarded to the successful claimant in a disposal hearing because of the conduct of the claimant’s solicitors. The court held the claimant’s solicitors had grossly over-valued the claim and failed to enter into real negotiations having only made one unrealistic offer before issue. Further, the claimant’s costs were exaggerated and difficult to justify. The court ordered a partner from the claimant’s solicitors to file and serve a witness statement explaining their conduct to the judge.

Instructed by Philip Dearden, Ashton Morton Slack, Sheffield (Now part of Horwich Farrelly.)