Sarah Robson Barrister - Cases re Portal + Fixed Costs
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MOJ Portal and Fixed Costs Cases


Cases

There are now a number of cases concerning fixed costs on and around the MOJ Portals.  So, to make it easier to find a case on a particular point or issue, they are now subdivided below by topic/theme.  Where a case establishes more than one point, it may appear more than once in the below index. 

Click on the case name for more details and for a link to the judgment.  



Common Law Principles do not apply

(Common Law Mistake does not apply in the Portals)
(Waiver & Affirmation do not apply in the Portals )
(First Tier Appeal - Offer and Acceptance does not apply in the Portals)
(Non-Portal CPRs do not apply in the Portals)



Individual Heads of Loss

(Agreed individual heads of loss are binding)
(First Tier Appeal - Agreed individual heads of loss are not binding)
(First Tier Appeal - Agreed individual heads of loss are normally binding, entire Portal settlements are binding)
Phillips v Willis [2016] EWCA Civ 401
(Irrational for judge to order case out of Portal, individual heads of loss can be agreed) 



SIIIA Fixed costs on leaving the Portal

(No indemnity costs on late acceptance of a Part 36 where SIIIA applies)
(SIIIA Indemnity costs are hourly rate not fixed)
Shadow Qader v Esure Services Ltd [2016] EWCA Civ 1109
(Exception to SIIIA costs where allocated to multi-track)
Sharp v Leeds City Council [2017] EWCA Civ 33
(SIIIA fixed costs for interim applications apply even for Pre-Action Disclosure applications)
Bird v Acorn [2016] EWCA Civ 1096
(Re stage of fixed costs)
(A court has the power to vary quantum of fixed SIIIA costs for conduct)
Akhtar v Amin & Esure
(Where court ordered SIIIA costs, to be assessed, but SIIIA costs did not apply, the court had the power to order non SIIIA costs)
(Whether agreement to pay costs on the standard basis excluded the award of fixed costs, and whether non-fixed costs could be awarded as the case was exceptional per CPR 45.29J)

 
 
Part 36 offers and SIIIA Fixed costs

Cookson v Manchester City Council
(Acceptance of a Part 36 offer removes the court's powers under CPR 45.24 to limit the claimant to Portal costs)
Ansell v AT&T
(Acceptance of a Part 36 offer does not remove the court's powers under CPR 45.24 to limit the claimant to Portal costs)



When CPR 45.24 can be applied

(First Tier Appeal - Fixed costs can be awarded on assessment; not limited to when order for costs made/agreed)
(Appeal to SCCO - Fixed costs can be awarded on assessment and standard basis does not exclude fixed costs)
(Where the Claimant had not issued Part 7 proceedings, CPR 45.24 could not be used, but the court could get to the same result otherwise)



Leaving the Portals

(Leaving for technical non-compliance only not reasonable)
(First Tier Appeal - Failure to explain reason for offer not fatal)
(First Tier Appeal - CPR 45.24 engaged even when case automatically left, where that departure was caused by an act which the Claimant elected to take)
(Omission to act causing claim to leave Portal was an election to leave)
(Where judge ordered case out of Portal was still Claimant's election to leave)
(No obligation to make offer in Portal, unreasonable to leave for that, D's Costs awarded on indemnity basis following finding that C acted unreasonably)
(No test of reasonableness for total failure to use the Portal)
(Making a pre-med offer did not justify leaving the Portal)

(Claim left Portal after Claimant failed to include mandatory information in the CNF)
 
 
   
Cannot use Hindsight or Speculation

Raja v Day & MIB HHJ Gregory, Liverpool CC, 02.03.15
(Cannot take into account would have left the Portal anyway)
Tennant v Cottrell
(Cannot change reason for leaving, nor retrospectively justify reason)
Dawrant v Part & Parcel Network Ltd
(First Tier Appeal - Cannot use hindsight when a case has left the Portal)



Using the Portals
 
Mulholland v Hughes HHJ Freedman, Newcastle CC, 18.09.15  
(First Tier Appeal - Offers in the Portal do not amount to admissions, Claimants have to repay overpayment of damages in non-settlement payment, Arguments at Stage 3 limited by those in Stage 2 pack)
(Multiple CNFs - how to deal)
(Witness statements permitted under the [2010] Protocol)
Raja v Day & MIB HHJ Gregory, Liverpool CC, 02.03.15
(First Tier Appeal - Default position on finding a Portal breach is fixed costs, burden shifts to Claimant to show why should not apply)
Smith v Owen
(Unreasonable exit for non payment of disbursement)
(Contempt re completion of CNF)
(Limitation, Stays and Service of a Portal Claim form)



Montreal Convention Claims

The Portal does not apply to Montreal Convention Claims
The Portal does not apply to Montreal Convention Claims



Are Portal Admissions binding outside the Portal ?
 
(Portal Admissions are binding outside the Portals)
(Portal Admissions are not binding outside the Portals)
(First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred)
Maddocks v Lyne
(First Tier Appeal - Entire Portal settlements are binding)



Portal Offers outside the Portal

Purcell v McGarry
(Portal offers are open for acceptance in Stage 3)
Akinroyde v Esure
(Portal offers are open for acceptance after Part 7 proceedings issued)



Offer of Zero is a Valid Offer




Interim Payments
 
Luvin v Ageas Insurance Ltd
(Sets out the rules and procedure on interim payments)
Ampratwum v Zbigniew Samajeden & Esure
(special rules on interim payments for vehicle related damages - judgment not available


 
Range of Prognosis Period given

Dominic v Martin
(First Portal appeal, established that should award in middle where range of prognosis given in absence of witness evidence)



Sarah is always very happy to receive any cases on matters related to the Portal or ex-Portal and related costs matters to add to this website.