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MOJ Portal cases on soft tissue injury claims and medical report disclosure, including Mason, Greyson, Moesaid and Abdulmalik. Soft Tissue Injuries Claims Mason v Laing HHJ Gosnell, Bradford CC, 20.01.20 The Portal rules are strict; if in a soft tissue injury claim the first report is not disclosed before subsequent ones, a Claimant cannot rely on the subsequent reports. Greyson v Fuller [2022] EWHC 211 (QB) The High Court held that where the reports were served together, the sanction was costs, not the admissibility of the report. Moesaid v Calder DDJ Kube, Manchester CC, 27th August 2021 Where a subsequent report took the claim out of the definition of soft tissue injury claim, it did not matter when the reports were disclosed, the special rules on soft tissue injuries did not apply. Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 There was no requirement for the first report to be disclosed before the second report was obtained, only disclosed. However, compliance with the order of disclosure required did not mean that the cost of the report would automatically be allowed - the court could still disallow it for other reasons. The time to consider whether the claim was a soft tissue injury claim was when the second report was being disclosed. Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Cham v Aldred [2019] EWCA Civ 1780. Here the court famously held that an infant approval opinion by counsel was not required because of a particular feature of the dispute, but a particular feature of the Claimant. Therefore it was not a recoverable disbursement inter partes in CPR 45 SIIIA fixed costs cases. Key Point Recoverability of disbursements in SIIIA cases Cham (by their Litigation Friend Laura Martin) v Aldred [2019] EWCA Civ 1780 The SIIIA fixed costs regime provides for an advice from counsel in infant cases in the sum of £150. This seemingly untroubling disbursement was awarded at first instance and first tier appeal. However, the Defendant appealed again, and argued it was not recoverable in addition to fixed profit costs. The matter came before LJs Coulson, McCombe and Davies on 8th October, and judgment was handed down on 25th October 2019. LJ Coulson gave the lead judgment and found that the infant approval advice was required not because of a particular feature of the dispute, but because of a particular feature of the Claimant, namely that they were an infant. Therefore it was not recoverable. The court also considered the potential for overlap, claiming the same disbursement under the ‘catch all’ provision in CPR 45.29I(2)(h). At [51] the court held that if an item was specifically within Table 6B, it would not be recoverable in addition to fixed costs. The brief fee was the most obvious example. The court also churned out the oft repeated ‘swings and roundabouts’ argument mentioned in Sharp v Leeds City Council [2017] EWCA Civ 33 . Thus, the appeal was allowed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Petit v MIB & 5 Ors - DJ Pollard, Brighton CC, 15.02.17 - A claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Key Point A claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Petit v MIB & 5 Ors DJ Pollard, Brighton CC, 15.02.17 This claim started in the MOJ RTA Portal Protocol, but should not have done. The accident occurred on 18 Oct 2011 when the Portal upper limit was £10,000. The Portal upper limit was changed to £25,000 for all accidents which happened after 31 July 2013, and the new Protocol applied to all claims where the CNF was submitted after that date too. In this case the CNF was submitted on 19 Sept 2014. Thus the claim was subject to the new Protocol, but the old upper limit, a point which eluded the claimant solicitors at the time. The MIB objected to the claim being brought in the MOJ Portal protocol because of its value stated on the CNF to be between £10,000 - £25,000. The claim was later removed from the Portal for that very reason and Part 7 proceedings were brought. The Defendant sought to limit the Claimant's costs to fixed costs under SIIIA of CPR 45. However the court disagreed, finding that as the claim had not 'properly' started in the MOJ Portal Protocol, SIIIA costs did not follow. Please note it has not yet been possible to obtain a copy of the approved judgment, however the link below is to the draft transcript agreed by both counsel in the case. Click here for a copy of the unapproved judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Hussain v Wardle - DJ Rank, Stoke on Trent CC, 25th February 2017. Here the CNF was rejected for lack of information. There was no test of reasonableness in CPR 45.24(2)(a) - unlike with leaving the Portal under CPR 45.24(2)(b)(i-iii). Key Point CNF rejected for lack of information - no test of reasonableness in CPR 45.24(2)(a) - unlike with leaving the Portal under CPR 45.24(2)(b)(i-iii) Hussain v Wardle Stoke on Trent CC, DJ Rank, 25th February 2017 The Claimant brought a claim in the MOJ Portal but failed to provide the Defendant's name in the CNF. The Defendant's name had not been provided at the scene. The Defendant Insurer rejected the CNF for incomplete information on it. The Defendant's name is a mandatory field. The Claimant then issued Part 7 proceedings and the claim settled by way of Part 36 offer. Costs went to Detailed Assessment. On Provisional Assessment the court found that the Claimant was in breach of the Portal Protocol, and restricted the Claimant to Portal costs. However, the Claimant applied for Oral Review, arguing it was not their fault they had failed to provide this mandatory information, and they had made good efforts to settle the claim after the claim left the Portal and before proceedings were issued, which should count in their favour. The court found there was a breach of the Portal Protocol, and went on to consider whether to exercise their discretion under CPR 45.24(2)(b). The court agreed with the Defendant that they could not use hindsight and speculation, per Tennant v Cottrell and Dawrant v Part & Parcel Network . Thus what happened after the Portal breach was irrelevant. The court agreed with the non-binding finding in Raja v Day & MIB , that the default position on the finding of a breach was that Portal costs should apply. The court found there were no exceptional circumstances which would justify a change from the default position. There were well-established ways of finding out the Defendant's details. The court also considered the fact that the claim had settled by way of a Part 36 offer, but rejected the Claimant's argument that this precluded an award under CPR 45.24(2). DJ Rank relied on the judgment of Lo rd Justice Moore-Bick in Solomon v Cromwell in this regard and quoted him at [17] thus: If the appellants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases. That would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases... In the absence of any exceptional circumstances which would justify departing from the established default position, the court found that they would restrict the Claimant to Portal costs. There are not many cases of claims which have come out of the Portal because of lack of information on the CNF, so this is a particularly useful case. Note that there is no test of reasonableness in CPR 45.24(2)(a) as there is in CPR 45.24(2)(b). Thus even though the Claimant had ostensibly a good reason for not completing one of the mandatory fields, it could not and did not avail him. The rule in CPR 45.24(2)(a) only requires the Defendant to have rejected the claim because of INSUFFICIENT information. There is no requirement for the missing information to be mandatory. There is a curious further Portal provision at para 6.8 of the RTA Protocol, which provides that where a Defendant considers inadequate MANDATORY information has been provided, that shall be a valid reason for the Defendant to decide that the claim should no longer continue under the Protocol. There is no assessment of the reasonableness or not of the Defendant anywhere in CPR 45.24, there is no weighing of each party's behaviour, so it is unclear why this rule exists. In practice, it seems to operate to strengthen a Defendant's position when seeking an order under CPR 45.24(2)(a) where the insufficient information arises from a missing or incomplete mandatory field. However it does appear to some litigants into thinking that there is a benefit in trying to establish that a Defendant's decision to reject a CNF was invalid. Time will tell. Watch this space! Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Purcell v McGarry - the court held that offer and acceptance have no place in the MOJ Portal - it is a stand-alone code. Key Point Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th December 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Portal Admissions binding outside? Disapplication of Common Law

Key Point

Ansell & Evans v AT&T HHJ Clarke, Oxford County Court, 14th December 2017 Key Point A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted (Inconsistent with Cookson v Manchester City Council) Ansell & Evans v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer. The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA. However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit. Furthermore CPR 36.20 was headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies. Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24. The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer. The Claimant appealed, but unsuccessfully. The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24. NB There are now two inconsistent decisions at the same level, so some higher authority would be welcome to clarify which is the correct approach. Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed. As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Patel v Fortis - Recorder Morgan, Leicester CC, 5th December 2011 - Leaving the Portal for technical non-compliance only is not reasonable and Non-Portal CPRs have no application in Portal Protocol cases Key Points Leaving the Portal for technical non-compliance only is not reasonable and Non-Portal CPRs have no application in Portal Protocol cases Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 The Claimant removed this case from the Portal because the Defendant had not sent an acknowledgement of the claim within 24 hours, which is a mandatory requirement. The Claimant then issued Part 7 proceedings, although the parties later settled quantum without a hearing. The issue was what costs should apply. The Defendant argued firstly that they had acknowledged the claim in time, but in the alternative, the claimant had acted unreasonably and should be restricted to Portal costs under the then CPR 45.36(2)(b)(i) (now CPR 45.35). The Defendant argued that whether the CNF was a claim form or either way, their Insurer Response sent 48 hours later (which it was accepted counted as an acknowledgement) was not late. The court held that the CPR rules on service did not apply to service of the CNF; the Portal was a highly stand-alone code and one could not simply import non-Portal CPRs into it. Thus the fact that the CNF had been sent after did not make any difference. The Portal rules required an acknowledgement to be sent the next day, whatever time of day the CNF had been sent. However, the court did find that the Claimant had acted unreasonably in leaving the Portal and issuing Part 7 proceedings. Whilst there was a breach, it was a technical breach only and made no real difference. If the Claimant solicitors had been genuinely concerned to see if their claim had been received, they could have checked by either looking on the Portal or contacting the Defendant, but they did nothing. The judge held that it was unreasonable to leave the Portal for a technical breach only, it was not reasonable, and he restricted the Claimant to Portal costs. The court also considered the application of CPR 45.36 (now CPR 45.24) as the matter had settled, so there was no judgment. The court had no difficulty in finding that the rule applied equally to cases which settled as well as to those where was given. there would be a lacuna in the rules and it would discourage settlement. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018. Here the court held that the Portal exit by the claimant was NOT unreasonable given D's behaviour. Also the court held that it was premature to apply to restrict a Claimant to Portal costs before the claim had concluded. Key Points Portal exit was not unreasonable given D's behaviour and It was premature to apply to restrict a Claimant to Portal costs before the claim had concluded Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018 This claim started in the MOJ RTA Portal Protocol, but the Claimant removed it from the Portal following the Defendant's repeated requests for more information and further disclosure. The Claimant had warned the Defendant that if they kept requiring further information, that they risked making the claim too complex for the Portal, but the Defendant continued to ask for more. The Claimant then removed the claim from the Portal because it was too complex, and issued Part 7 proceedings. Whilst those proceedings were ongoing, the Defendant made an application for the Claimant to be restricted to Portal costs under CPR 45.24. The Claimant argued that it was premature to seek such an order before the claim had concluded, and in any event, the claim had become too complex and was no longer suitable for the portal. In a reserved judgment the court found that the application was made too early, and in any event the departure from the Portal was not unreasonable in all the circumstances. The Claimant had supplied over 50 pages of evidence, the credit hire claim was not insignificant at over £17K, and it was clear that two of the heads of loss were going to be strongly defended, and the Claimant had warned (not 'threatened' as D argued) the Defendant that the claim may leave the Portal if they sought any further information , yet they still asked for more. This is an unusual decision, finding that a Portal exit was reasonable as most cases have held the opposite. However, it does demonstrate that the Portal Protocol is only suitable for straightforward claims, and Defendants need to be careful they do not make a claim too complex by how they approach defending such claims, particularly where the vehicle related damages are larger. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Akinrodoye v Esure DJ Goodchild, Romford CC, 16th February 2015 - Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued. Key Point Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued Akinrodoye v Esure DJ Goodchild, Romford CC, 16th Feb 2015 This claim had started in the MOJ RTA Portal and Part 7 proceedings were issued. Later the Defendant sought to accept the Claimant's Portal offer, but the Claimant argued that their offer was no longer available for acceptance because Part 7 proceedings had been issued (trying to distinguish this from Purcell v McGarry .) However, the court found that a Portal offer remains open for acceptance unless withdrawn and that it could not be implicitly withdrawn nor withdrawn automatically because certain events such as proceedings had been issued. This is an important case as it extends the decision in Purcell to make it clear that Portal offers remain open for acceptance unless and until withdrawn. Litigants need to be careful to ensure that they have not left any unsuitable Portal offers open if circumstances have changed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index