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Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17.12.15 Key Point Protocol offers are open for acceptance until withdrawn, even after Part 7 proceedings have been issued but only if they have proceeded into Stage 3 Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17th Dec 2015 Protocol offers are open for acceptance until withdrawn, even after Part 7 proceedings have been issued but only if they have proceeded into Stage 3. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th June 2015 Acceptance of individual heads of loss in the Portal is binding at Stage 3 There have been a few cases on this point since. See Bushell v Parry (first tier appeal) which held that agreement on individual heads of loss are not binding but the circumstances were odd, and Maddocks v Lyne (first tier appeal by DCJ) which held that they are binding in the Portal and mostly binding outside the Portal, Bewicke-Copley preferred over Bushell. Key Point Acceptance of individual heads of loss in the Portal is binding at Stage 3 Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th June 2015 The Defendant accepted the Claimant's offers for personal injury and pre-accident value, but not the claim for credit hire and storage. The Defendant sought further information about those heads of loss, but the Claimant responded by removing the claim from the Portal because it was 'too complex'. Part 7 proceedings were issued claiming for all heads of loss including those agreed in the Portal. The Defendant applied for judgment to be entered for those heads of loss already agreed in the Portal, and for the remaining heads of loss to be allocated to the small claims track. DJ Vincent (as she then was) held that individual heads of loss could be agreed in the Portal and that they were binding. There have been a few cases on this point since. See Bushell v Parry (first tier appeal) which held that agreement on individual heads of loss are not binding but the circumstances were odd, and Maddocks v Lyne (first tier appeal by DCJ) which held that they are binding in the Portal and mostly binding outside the Portal, Bewicke-Copley preferred over Bushell. 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

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

Other Cases concerning fixed costs, from the Court of Appeal down to Deputy District Judges. See what is going on at the coal face! Other Useful Fixed Costs Cases Ahmed v Pryce DJ Bellamy, Sheffield CC, 11.12.18 Ashraf v Savage DDJ Nix, Leeds CC, 16.01.19 Aslam v Gavin DJ Underwood, Bradford CC, 15.12.17 Baker v Flynn DDJ LeBas, Guildford CC, 19.11.19 (upheld on appeal) Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 08.07.15 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 Ionas v Clennell HHJ Gargan, Middlesbrough CC, 23.10.17 Moon v Catley HHJ Gargan, Middlesbrough CC, 11.01.17 R (on the application of Bhatti) v Bury Metropolitan Borough Council [2013] All ER (D) 355 (Oct) Rennie v Logistic Management Services Ltd and Smith v Wyatt [2011] EWCA Civ 941 Talbot v South Western Ambulance Service NHS Foundation Trust DJ Stewart, Southampton CC, 21.09.19 Wilkinson-Mulvanny v UK Insurance Ltd Regional Costs Judge Phillips, Cardiff CC, on 19.01.23

Costs awarded under CPR 45.29J for exceptional circumstances in SIIIA CPR 45 fixed costs. Key Point SIIIA Exceptional Circumstances Costs awarded under CPR 45.29J Lloyd v 2 Sisters Poultry Ltd HHJ Howells, Mold County Court, 29th Jan 2019 This was an appeal in a SIIIA case where the lower court had found exceptional circumstances and awarded costs under CPR 45.29J. On appeal the court considered the swings and roundabouts nature of fixed costs, but found the lower court had correctly weighed all the relevant issues in the balance, and that decision could not be faulted. The claim arose from a personal injury accident at the Claimant's place of employment. Liability was not disputed. Initially the claim began relying on one medical report, but a subsequent report gave a much gloomier picture and indicated the Claimant had a permanent injury and would be disabled within the meaning of the Equality Act 2010. The appeal court noted at [13] that the lower court's attention had been drawn to the extensive work carried out, with the solicitor correspondence running to some 63 pages with little padding, the schedule of special damages alone amounting to over £71,500 which was 27 pages long, a detailed Ogden 7 calculations for future loss of earnings, an alternative Billet approach with a witness statement from the Claimant running to 16 pages dealing in detail with the Claimant's pre-existing medical conditions, current conditions, education, employment, need for care and assistance - all of which was relevant to the future loss of earnings and Ogden/Billet calculations. At [17-18] the court considered Hislop v Perde , and noted how LJ Coulson had 'uncoupled' the link between the causation of increased costs and the award of exceptional circumstances costs there. HHJ Howells noted that the lower court had taken all the relevant factors into account, particularly the permanent disability and the Ogden calculations, but also the value of the claim, and concluded they were appropriate factors for the court to consider made this case exceptional for the test in CPR 45.29J. The appeal was dismissed and the Claimant kept their award of open costs. This case is unusual in that it is one of only two cases (the other being Jackson v Barfoot Farms ) I am aware of where non-fixed costs have been awarded under CPR 45.29J. In both cases, the Claimant suffered significant and permanent injuries. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Case law on the new expanded fixed costs regime from October 2023. Including Asmat Bi v Tesco Underwriting Ltd. Oct 23 New Fixed Costs Cases Asmat Bi v Tesco Underwriting Ltd When settled pre-Oct 23 pre proceedings, which costs apply Go Back to Index Click on the button below to go back to the case law index Index

Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 2015 At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd Mar 2015 The Claimant had some difficulty in locating the correct and sent CNFs to a number of incorrect Defendants before finding the correct one. However, instead of sending them a CNF first, the Claimant issued Part 7 proceedings against them. At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. This case, along with Tennant v Cottrell , Dawrant v Part & Parcel Network and Hussain v Wardle confirms that a court cannot use hindsight when assessing whether a Claimant has acted unreasonably in breaching the Portal. A court must look at things as they were at the time of the breach. There can be no retrospective justification for an earlier Portal breach. Click here for a copy of the judgment Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 - here the court held an offer of zero on one head of law was a valid offer in the MOJ Portal. Key Point An offer of zero is a valid offer in the Portal Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 The Defendant made an offer of zero for one head of loss in the Portal. The Claimant removed the claim from the Portal, claiming that the Defendant had breached the Portal rules. When it came to costs the Claimant argued that the requirement to propose an amount for every head of damage (now para 7.41 RTA Protocol, 7.35 EL/PL Protocol) required the Defendant to propose a figure other than zero. They claimed that by offering zero, the Defendant was in breach of that requirement which justified their departure from the Portal. However, the court found that an offer of zero was a perfectly valid offer. To find otherwise would be to find that a Defendant would have to offer at least 1p for any head of loss claimed, however ludicrous it might be. That could not be right. Whilst an offer of zero might be perfectly valid as an offer on one head of loss, it is unclear whether the situation would be the same if every head of loss had an offer of zero made. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Monteith v Carroll Making a pre-medical offer did not justify removing the claim from the Portal. The Claimant was restricted to Portal costs. Key Point Pre-Med offer does not justify Portal exit Monteith v Carroll Liverpool CC, 17th October 2012 The Defendant made a pre-med offer. The Claimant removed the claim from the Portal claiming they could not advise their client within the Portal as to whether they should accept the offer or not. The court held that was not a good reason to leave the Portal, and restricted the Claimant to Portal costs. Please note there is no copy of the judgment itself. Go back to Main Index Main Index Go back to Topic Index Topic Index

DJ Jackson, Canterbury County Court, 29th November 2017. An unusual case where CPR 45.29J exceptional circumstances were found. The claim settled for £350K, there were multiple experts and much in issue. C also argued unsuccessfully that having agreed standard basis costs that excluded fixed costs, before Adelekun v Ho was decided. Key Point SIIIA Exceptional Circumstances Costs under CPR 45.29J Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th Nov 2017 Here the Claimant argued that having agreed terms that the Defendant would pay the Claimant's costs on the standard basis, that fixed costs were excluded. However, the judge found this did not, interestingly the same decision was reached in the SCCO in Davies v Greenway , although the court was not referred to that. Secondly, the claimant was able to successfully argue that the case was so exceptional that non-fixed costs would apply, per CPR 45.29J. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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