DJ Jenkinson, Liverpool CC, 11th December 2014
The Claimant removed this claim from the Portal when the Defendant made an offer of zero for one head of loss. Part 7 proceedings were issued in which the Defendant sought allocation to the fast track, and for the Claimant to attend for cross-examination. Costs went to Detailed Assessment. In Replies to Points of Dispute, the Claimant tried to argue for the first time that the claim had left the Portal because it was too complex, and pointed to the fact that the Defendant had sought to cross-examine the Claimant and allocate the claim.
However, DJ Jenkinson found that the reason the Claimant had left the Portal was completely clear. That was set out in their letter at the time they left the Portal, stating they were doing so because the Defendant had offered zero on one head of loss. The judge said that you could not change your reason for leaving the Portal later, and there could be no argument that a claim 'would have left anyway'. To allow such an argument would be to allow a Claimant to 'retrospectively justify' their earlier unreasonable exit. He would not allow this. The Claimant was restricted to Portal costs.
Click here for a copy of the judgment.
Claimants often try to argue that a claim 'would have left the Portal anyway'. However as this case makes clear, a party cannot change their reasons for leaving later, nor can they rely on anything which happened after a breach of the Portal when assessing whether they had acted unreasonably under CPR 45.24(2).