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Key Points

Leaving the Portal for technical non-compliance only is not justified


Common Law
Waiver and Affirmation do not apply in
the Portal

Kilby v Brown

DJ Peake, Birkenhead CC, 10th February 2014

Here the Defendants inadvertently underpaid the Claimant their Stage 2 payment by a mere £15. The Claimant solicitors ceased upon the opportunity to remove the claim from the Portal. The costs went to a separate hearing where the court considered whether the Claimant had acted reasonably in removing the claim from the Portal in circumstances where there had been a clear and admitted breach of the Portal Protocol.

The judge held that the Claimant solicitors had been wholly unreasonable and restricted the claimant to Portal costs under CPR 45.24(2)(b)(i).

The Defendant also argued that as the Claimant had banked their cheque, they had thereby affirmed their breach. However, the judge held that the Portal is and that the common law doctrines of waiver and affirmation do not apply.

Click here for a link to an article about this case in the Liverpool Echo

People often say this case was only decided this way because the Claimant had run up an unreasonable £16K of costs in a simple low-level case. However, those were the total costs of both sides and included the additional costs arising from the additional hearing the costs dispute caused. The principle applies equally however much the parties costs are, and indeed now most would fall under SIIIA fixed costs.

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